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Tuesday, October 11, 2016

Who has the right to bury a body in New York?

The question presented is who has the right to bury a body in the state of New York. The short answer is whomever the Will dictates. But what if the Will is silent on this issue and neglects to determine your loved one’s last wishes or to direct someone to have control over the burial arrangements? You can end up in a family war over how your loved one is to be buried.

Imagine the following scenario: your loved one has passed and there is a Will. Unfortunately, the Will fails to mention how he wants to be buried and fails to delegate that duty to a person. It is now up to your loved ones to hash it out. One side is pushing for cremation and the other is pushing for a burial. What are your options? 

New York has designated who would have responsibility for how the remains would be laid to rest in the Public Health Law § 4201. It states the order, in descending priority, of who shall have the right to control the disposition of the remains: first, a person that is designated in a written instrument; second, a surviving spouse or domestic partner; third, any of the surviving children eighteen years of age or older, fourth the surviving parent, and the list continues. N.Y. Pub. Health Law § 4201 (McKinney).

The first thing you will have to argue is “intent.” You will have to prove what your loved one would have wanted based on his or her actions. A court will look at Affidavits of members of the family, friends, attorney who drafted the Will, etc.

Next the court will look at if your loved one has taken any steps to further their intention. Things a court will consider are, for example, if your loved one has made any arrangements for his burial. For example, if there is a spaced reserved at a cemetery for your loved one to be buried next to a spouse and that space is only big enough for a cremation urn, this would show intent by your loved one to be cremated.

Courts in New York have held that a decedent’s wishes will be taken into account when a dispute erupts over the ultimate disposition of remains and, in some cases, even given effect over the objections of family members.  Booth v. Huff, 273 A.D.2d 576, 577 (3rd Dep’t 2000); Matter of Briggs v. Hemstreet-Briggs, 256 A.D.2d 894 (3rd Dep’t 1998).

Examining a decedent’s acts is a great factor in determining a decedent’s wishes, including the act of purchasing a cemetery plot.  See In Re Grace D., 31 Misc.3d  622, 625 (Nassau Cty. Sup. Ct. 2011) (holding that, despite decedent’s adult siblings’ having statutory priority to determine disposition of remains, decedent’s own action of purchasing a cemetery plot several decades earlier displayed his intention, which dictated burial); see also Application of Hilliard, 91 N.Y.S.2d 547, 549 (Bronx Cty. Sup. Ct. 1944) (acknowledging decedent’s act of building a mausoleum was indication of his intentions for his own burial place); In Re Application Pursuant to Art. 4200 of Pub. Health Law, 196 Misc.2d 599, 600 (Nassau Cty. Sup. Ct. 2003) (finding decedent showed intent to have a traditional Jewish burial based on his involvement in the Jewish community as testified to by his Rabbi, and holding said intentions dictated burial).

Where the Last Will and Testament does not indicate the testator’s desires regarding his final resting place, the procurement of a plot is a clear indication of his intended wishes.  See Matter of Louis V.P., 29490-I-09 (Nassau Cty. Sup. Ct. 2011) (Asarch, J.) N.Y.L.J. 3/7/2011, dec.nylj.com/1202484162705.

Further evidence of intent may be inferred from choosing a health care proxy.

The Proxy document can, for example,  give the authority to make pre-arrangements for funeral, burial, or other arrangements. 

Courts are sensitive “to all those promptings and emotions that men and women hold for sacred in the disposition of their dead.” See Yome v. Gorman, 242 N.Y. 395, 402 (1926) (allowing disinterment to satisfy the “longing that those united during life shall not be divided after death”); see also Eirand-Herskowitz v. Mt. Carmel Cemetery Assoc., 27 Misc.3d 1213(A) (Queens Cty. Sup. Ct. 2011), aff’d., 82 A.D.3d 1231 (2nd Dep’t 2011) (allowing disinterment to accomplish decedent’s “paramount wish that his wife and he be together in death as they were in life”).            

It is clear that the case law is well established in New York to support your loved one’s intent.

Taking care of a loved one’s funeral arrangements is no easy task when there are no obstacles involved. It becomes more difficult when family members are fighting over what should be done, creating nothing but family rifts and bad blood. The best way to avoid any of this is to have a properly drafted Will. This will not only ease your mind but will help guide your family though this difficult time.

Blog Post Authored by Desiree Lovell Fusco, B.A., M.A., J.D. and Brian White, B.A., J.D.  





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