PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Disputes Over Disposition Of Decedent’s Remains

The purpose of this article is to clarify Florida law as it relates to issues involving disputes over the disposition of a decedent’s remains.

  • Is the disposition of a decedent’s body a property right under the Probate Code?

No. The disposition of a body is not a property right pursuant to §732.6005(2), F.S., but a personal right of the decedent; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). Thus, the remains of a decedent are not property under §731.201(32), F.S. and therefore, not subject to ownership by the decedent’s beneficiaries.

  • Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?

Sec. 732.804, F.S. reads in relevant part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.

  • If the decedent has not expressed his intent regarding the place and manner of the disposition of his remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?

This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4th DCA 12/9/20). In Giat, the decedent died without a will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”

The court reasoned that common law and not Ch. 497, F.S. controls the dispute between family members over the disposition of the decedent’s remains.

The focus of Chapter 497, Florida Statutes is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.

Rather, section 497.383(2), Florida Statutes (2020), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, where there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.