TO BE CREMATED OR BURIED, THAT IS THE QUESTION

By James W. Mallonee

William Shakespeare’s statement of “to be or not to be, that is the question” fits when it comes to determining what is to be done with a person’s remains at death. Such decisions can generate a great deal of fodder and questions among family relationships. Much of those decisions will depend on the interrelationships of a person’s religious beliefs, cost and family desires. This problem has been the subject matter of questions among families whose loved one dies and leaves no writing or directions to the family on what to do with their remains once they have passed.

Florida attempted to resolve this issue by creating a set of laws known as Chapter 497 Fla Stat., which gives guidance to a funeral home and cemeteries regarding the services they offer to the public. It does not provide direction on who has authority to sign and make decisions for the disposition of a person’s remains. That decision is left up to the courts should such a question come up.

Consider the following: In the case of Giat v. SCI Funeral Serv. of Fla, LLC, where Mr. Giat, while living in another State, indicated orally that he wished to be buried in accordance with the Jewish religion. Mr. Giat then moved to Florida, only now he expressed a desire to be cremated. It is unknown as to what changed his mind but the oral expression was allegedly made to his wife. Upon his death, his wife made it known to the funeral home that he was to be cremated. The decedent’s son objected stating that his father was to be buried in the Jewish tradition.

Mrs. Giat claimed that she had authority to make the decision based on the Chapter 497 of the Fla. Statutes. The statute does state who has authority to sign for a decedent’s body. The statute states the spouse has first priority followed by the decedent’s children. It does not state who has the authority to determine the disposition of a person’s body (cremation or burial).

A hearing was held in the lower court where it reasoned in the absence of any written statement showing the intention of the decedent that the spouse has priority in deciding disposition of her husband’s body. The law does state in the absence of any intentions expressed by the decedent, the determining factor of how a person’s body should be disposed requires an evidentiary hearing with the court. In this case, lacking any evidentiary writing the trial court determined the spouse had the right to decide what to do with the husband’s remains. But that is not what the statute states and the son appealed. Lacking an evidentiary hearing the appellant court reversed returning the case back to the trial court to determine what were the intentions of the decedent.

The message to be learned from this case and those proceeding it is to have something in writing from the decedent stating what their intentions are when it comes to the disposal of their body (cremated or buried). Placing such intention in a person’s Will does not guarantee that it will be carried out. Such direction in a Will provides the court evidence of intention, but to be sure, it is suggested a decedent include a secondary writing expressing the disposition desired by the decedent.

What happens if there is no Will or other writing to draw from? In that case, the evidence can come from oral statements as well as written directions by the decedent. What has been learned from the Giat case is an objection as to the disposition of a person’s body can be made by any interested person. If an objection is made the court will hold an evidentiary hearing to learn by clear and convincing evidence what the decedent’s intention was concerning the disposition of their remains.

If you are involved in an argument with family members about the disposition of a loved one’s remains, you should seek out the attorney of your choice and have a discussion regarding the intentions expressed by the decedent. Writings are ideal, but not always perfect.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.

James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223

871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223