Power to Control Disposition of Remains
By Kent Berk on March 25th, 2020 in Elder Law, Probate, PROBATE LITIGATION
The death of a loved one is traumatic enough. Disputes over the power to control the disposition of remains in Arizona only adds to the stress. So, what happens when a person dies without leaving clear instructions for cremation or burial of his remains? Who gets to decide?
Ghostley- Decedent’s Remains In Purgatory
In the Matter of the Remains of James David Ghostley, Deceased, No. 2 CA-CV 2018-0197, January 22, 2020, these questions were the topic of a Division Two Arizona Court of Appeals decision.
After their son, Mr. Ghostley, died in 2018, his divorced parents disagreed about the proper disposition of his remains. Father filed a Petition in Pima County probate court to resolve the dispute. A hearing was held. A.R.S. § 32-1365.02(J) authorizes “a court of competent jurisdiction” to resolve disputes between persons listed in § 36-831(A) “concerning the right to control the disposition, including cremation, of a decedent’s remains.”
Testimony from the decedent’s girlfriend and his father indicated that the decedent had expressed his wishes to be cremated and his ashes spread in places he loved. Mother testified that she objected to cremation on religious grounds and, because they were very close, her son would not opt for cremation knowing it would cause his mother emotional torment. Another witness testified to the close relationship decedent had with his mother and that they both practiced the same religion that dictates burial and not cremation.
The Court ruled that decedent “wished to be cremated and that cremation is reasonable and that his wishes do not impose an emotional or economic hardship on any party.” The Court also ordered the cremains to be divided between father and mother. Mother appealed.
In its opinion affirming the probate court, the Court of Appeals looked to the Arizona Revised Statutes (ARS) governing who has the power to direct the disposition of human remains in Arizona. ARS § 36-831 lists the priority of who may act. First is a surviving spouse followed by “a person designated” by power of attorney. Section A.5 names the “dead person’s parents.”
Section D states: “If there is more than one member of a category listed in subsection A, paragraph 3, 4, 5, 6, 7, 8 or 9 of this section entitled to serve as the authorizing agent, final arrangements may be made by any member of that category unless that member knows of any objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.” In this case, there was no majority.
The Court of Appeals first addressed whether the Court had the power to referee the underlying dispute over whether Mr. Ghostley’s remains should be cremated or buried, or just decide who among those with equal priority should make that decision. The Court of Appeals concluded that various “broad language [in the statute], read in the context of the statutory scheme and the pertinent legislative history, authorizes trial courts to resolve the merits of underlying disputes between litigants of equal statutory standing.” Thus, the Court had the discretion to determine the decedent’s wishes, whether there was a relevant hardship and whether any hardship was sufficient to outweigh the decedent’s wishes.
The Court then looked to ARS § 36-831.01(A) which states: “If the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”
Mother argued that the probate Court erred in finding that cremation would not result in “emotional hardship”. Looking at the statute giving priority to “the decedent’s wishes,” the Court found that a party’s distress concerning the disposition of a decedent’s remains “constitutes an emotional hardship only when it is sufficiently weighty to overcome the statutory presumption favoring a decedent’s wishes.” In other words, the decedent’s wishes are given priority. There, the Court of Appeals found that the trial Court did not abuse its discretion in finding that mother’s emotional distress did not outweigh the decedent’s wishes to be cremated.
Finally, mother argued that the probate court erred by not applying the common law right of sepulcher. The “right of sepulcher” dates back hundreds of years in common law. The right of sepulcher is the right to choose and control the burial, cremation, or other final disposition of a human body. The Court here ruled that the Arizona statute directly on point overrode any common-law doctrine to the extent that it varied from that doctrine.
The probate court granted mother’s motion to stay cremation pending resolution of the appeal. That means that the remains of Mr. Ghostley waited for disposition since October 2018. Unfortunately, the absence of any written directive of burial wishes allowed this dispute to continue, surely at substantial economic and emotional expense, for well over a year after Mr. Ghostley died.
Burial authority is frequently contained in a Durable Financial Power of Attorney; a Medical Power of Atorney, Healthcare Directive or a Living Will. Also, many religious organizations have prepared detailed language to include in these documents clearly stating their tenets regarding end of life and disposition of remains.
This case is just one more example of why it is important to hire a qualified estate planning attorney and ensure that you have all of your affairs in order. Berk Law Group handles all types of probate, estate and trust disputes and litigation, including burial and disposition disputes, but does not perform estate planning work. We can recommend various estate planning attorneys if you need a referral.
Learn more about the duties and powers to bury or cremate a decedent in Arizona. If you have any questions about the power to control the disposition of a loved one’s remains in Arizona, please give us a call at 480.607.7900 or contact our office.