Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, September 26, 2014

Divided at Death

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In Wilson v. Wilson, a divorced couple was at odds with each other over where to bury the ashes over their 23-year-old son, who was killed tragically in a car crash.  When he died, he left no will, and his parents were the co-personal representatives and sole beneficiaries of his estate.  They agreed to have his body cremated, but could not agree on what to do with the ashes. 

William, the father, petitioned the Florida probate court to declare the ashes ‘property’ to be apportioned between he and his ex-wife, Lili, as the beneficiaries of the estate under the probate code.  Lili did not want the ashes divided for religious reasons, and argued the ashes were not property and not subject to ownership by anyone.    

While courts have recognized that a person has the right to dictate what should be done with his own body when he dies, neither probate nor intestate succession statutes govern what happens to the body of a decedent.  This is because a person does not have a property interest in his own body while he is a live.  Hence, a decedent’s corpse has never been an asset of his estate when he dies.  In this case, the court held that the ashes were not property, and therefore could not be partitioned and divided between his parents. 

In an order appealed from in Wilson, the probate court had given the parents 30 days to try to reach an agreement about what to do and suggested that if they could not figure it out on their own, then the court might appoint a curator to make the decision for them.  Because there is no Florida law specifically governing the disposition of bodily remains, there is not much else the courts could do for them. 

See John T. Brooks and Jena L. Levin, May He Rest In Pieces? Wealth Management, Sept. 24, 2014.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

https://lawprofessors.typepad.com/trusts_estates_prof/2014/09/divided-at-death.html

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