Are a Person’s Remains Estate Property?

When someone passes away it is not uncommon for disputes to arise amongst family members over who will get what assets and how property will be distributed. Issues may also arise regarding what will happen to the deceased’s remains. Prior to 2016, Florida law was not well equipped to deal with such disputes.

In 2014, one case received attention when a father attempted to split the cremated remains of his deceased son 50/50 with his ex-wife, arguing that the ashes were part of his son’s probate estate. With little guidance outside of the common law, the court decided the remains were not property subject to probate division. The court relied heavily on case law which supported the proposition that generally, next of kin do not have a property right in their deceased family member’s remains. So, what was the solution? Ultimately, it was up to a trial court judge to decide what would happen to the remains. For many, such a solution may be unsettling, especially because a judge’s decision may not be consistent with what the decedent would have wanted.

On July 1, 2016, the Florida legislature addressed the matter and enacted a statute which codified the common law rule that remains are not estate property. The relevant statute plainly states that cremated remains are not property which are subject to division. So, who has the final say over what happens to someone’s remains? The statute makes the answer clear by providing a list of persons who may be authorized to make decisions regarding what will happen to someone’s remains. The list is in descending order of priority beginning with the decedent’s written instructions. Leaving behind instructions will provide your family with clarity regarding your own wishes—what you want to happen to your remains, who you want to keep your remains, and who will be responsible for making sure your instructions are carried out.  If no instructions are left behind, the list provides who else may be legally authorized to make decisions regarding the remains.Whoever is empowered to make final decisions over the remains, may consent to the distribution of the remains. However, if the conflict continues once cremated remains are divided, the dispute will be resolved by the court.

As attorneys who specialize in estate planning and probate litigation, we know how overwhelming grieving the loss of a loved one could be. Having to make decisions over what to do with your loved one’s remains could be uncomfortable for many, especially if it leads to conflict. Your best option is to avoid disagreements over disputed remains is to plan ahead. At the Florida Estate Planning Firm, our team of experienced Estate attorneys are equipped with the skills to help you and your family designate somebody to make these decisions for you, to avoid having to worry about it later on. To learn more about how our team can help you and your family call us at (305)-384-3386.

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