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The physical remains of an expired human being prior to complete decomposition.
Property and Possession Rights
In the ordinary use of the term, a property right does not exist in a corpse. For the purpose of burial, however, the corpse of a human being is considered to be property or quasi-property, the rights to which are held by the surviving spouse or next of kin. This right cannot be conveyed and does not exist while the decedent is living. Following burial, the body is considered part of the ground in which it is placed. Articles of Personal Property that have been buried with the body, such as jewelry, may be taken by their rightful owner as determined by traditional property rules or laws relating to Descent and Distribution or wills, as they are material objects independent of the body.
A corpse may not be retained by an undertaker as security for unpaid funeral expenses, particularly if a body was kept without authorization and payment was demanded as a condition precedent to its release.
At times, the need to perform an autopsy or postmortem examination gives the local Coroner a superior right to possess the corpse until such an examination is performed. The general rule is that such examinations should be performed with discretion and not routinely. Some state statutes regulate the times when an autopsy may be performed, which may require the procurement of a court order and written permission of a designated person, usually the one with property rights in the corpse.
The right to a decent burial has long been recognized as Common Law, but no universal rule exists as to whom the right of burial is granted. Generally, unless otherwise provided before death by the deceased, the right will go to the surviving spouse; if there is none, it will go to the next of kin. When a controversy arises concerning the right of burial, each case will be considered on its own merits. The burial right per se is a sacred trust for those who have an interest in the remains.
Although the surviving spouse usually has the principal right to custody of the remains and to burial, special circumstances undermine this right, such as the absence or neglect of the surviving spouse or the separation of the parties at the time of death.
When there is no surviving spouse, the next of kin, in order of age, have the burial rights, unless a friend or remote relative is found by the court to have a superior right. The caretaker of an elderly, childless decedent who lived with the decedent for years prior to his or her death and to whom the estate was bequeathed might have a burial right that is superior to that of relatives.
In the case of the death of a child of divorced parents, the paramount privilege of burial is awarded to the parent who had custody.
The preference of the deceased concerning the disposition of his or her body is a right that should be strictly enforced. Some states confer this right, considering a decedent's wishes of foremost importance.
In most instances, the courts will honor the wishes of the decedent, even in the face of opposition by the surviving spouse or next of kin. If for some reason a decedent's wishes cannot be carried out, direction should be sought by the court. The court will decide how the body should be disposed of and will most likely do so according to the wishes of the surviving spouse or next of kin, provided those wishes are reasonable and not contrary to public policy.
When an individual wishes to direct the disposition of his or her remains, no formality is required. Oral directions are considered to be sufficient, and an individual's last wish will ordinarily be the controlling factor, provided it is within the limits of reason and decency.
Occasionally, a decision by the person who holds the right to burial can cause controversy beyond the deceased's family. One of the more unusual cases involves the body of Ted Williams, one of the greatest baseball players in the history of the game, as well as a military hero in World War II and the Korean War. John Henry Williams, Ted's son, decided when his father died in July 2002 to freeze the body in liquid nitrogen in a process called cryonics. The body is stored in a warehouse in Arizona. Friends and family have suggested that Ted Williams wanted to be cremated, but his body remains in a frozen state. John Henry's decision has been a major controversy, not only among close friends and family, but among former teammates, baseball fans, and commentators.
Duties as to Burial
Public policy favors the concept of what is colloquially referred to as a "decent burial." There is a strong societal interest in the proper disposition of the bodies of deceased persons. It is universally recognized that a duty is owed to both society and the deceased that the body be buried without any unnecessary delay. This duty rests upon whoever has the right to bury the decedent. At common law, the duty was imposed upon the person under whose roof the deceased died.
Some state statutes specifically name those people who are charged with the duty of having a decedent buried. Statutes of this kind have been enacted for various policy reasons, such as the general interests of public health and the protection of public welfare, as well as the relief of anxiety that some people might experience concerning the proper disposition of their remains.
Rights to Disinterment
After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court.
The law does not favor disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances.
The courts frequently allow a change of burial place in order to enable people who were together during life to be buried together, such as husbands and wives, or family members. Disinterment for the purposes of reburial in a family plot acquired at a later date is generally authorized by law, particularly if the request is made by the surviving members of the decedent's family.
Disinterment may be allowed under certain circumstances, such as when a cemetery has been abandoned as a burial place or when it is condemned by the state by virtue of its Eminent Domain power for public improvement.
Consideration of the deceased's wishes as to his or her burial place is instrumental in a decision of a court as to whether or not a body should be disinterred. Such wishes are of paramount importance but are not necessarily controlling in all cases, such as when subsequent circumstances require a change of burial.
In states that have statutes regulating the exhumation or removal of the dead, such statutes are controlling.
Purchasing a lot in a cemetery entails a contract that obligates the purchaser and his or her survivors to abide by and observe the laws, rules, and regulations of the cemetery as well as those of the religious group that maintains it. When a dispute over the right to disinter a corpse arises, the court must make a finding of fact as to whether or not the rules or regulations of the cemetery forbid it.
Rights of Particular Persons to Disinterment The surviving spouse or next of kin of a deceased person has the right to let the body remain undisturbed. This right, however, is not absolute and can be violated when it conflicts with the public good or when the demands of justice require it.
Also, the right to change the place of burial is not absolute, and the courts take various factors into consideration when deciding whether a body should be removed for burial elsewhere, such as the occurrence of unforeseen events. If an elderly woman's husband died and was buried in New York and she subsequently moved to California, she might be allowed to have his remains removed to a different location to facilitate her visits to his grave.
The consent of the surviving spouse of a decedent to the decedent's original resting place is another factor that the court will consider in determining whether a body may be disinterred, particularly if it is against the wishes of the next of kin. Once consent has been shown, the burial will usually not be disturbed in the absence of strong and convincing evidence of new and unforeseen events.
If a body is improperly buried—that is, buried in a grave belonging to someone else who has not consented to the burial—the court will order the body removed for reburial.
A landowner who allows the burial of a deceased person on his or her property cannot later remove the body against the will of the surviving spouse or next of kin. On the other hand, the landowner is entitled to object to the removal of the remains from his or her land. A landowner may not assert that a burial was made without his or her consent if he or she fails to raise any objections within a reasonable time after the interment of the decedent.
Disinterment for Autopsies The disinterment of a body may be ordered by the courts for the purpose of an autopsy. Courts may permit a body to be exhumed and an autopsy to be performed under certain circumstances in order to discover truth and promote justice. If disinterment for the purpose of examination is to be allowed, good cause and exigent circumstances must exist to make such action necessary, such as controversy over the cause of death, or to determine in an heirship proceeding whether or not a decedent ever gave birth to a child.
Disinterment for an autopsy should not be granted arbitrarily. The law will only search for facts by this method in the rarest of cases and when there is a reasonable probability that answers will be found through disturbing interment.
A civil action for breach of contract as to the care and burial of a corpse may be brought under certain circumstances. An individual who makes an agreement to properly bury a corpse may be subject to a lawsuit if he or she gives the body an improper burial, negligently allows the body to be taken from his or her custody, or allows the body to suffer indignities while in his or her possession.
General rules that govern damages for breach of contract have been applied in these actions.
In one case, an undertaker was sued for failure to embalm a body in such a manner that it would be preserved for a reasonably long time. The plaintiff recovered damages for illness and disability suffered when he found out that the body had disintegrated and become infested with insects as a result of the undertaker's breach of contract. However, exemplary or Punitive Damages are not recoverable in such cases.
Funeral or Burial Expenses Even in the absence of a contract or statute, a person may be liable for funeral or burial expenses based on his or her relationship to the decedent, such as a Husband and Wife, or a Parent and Child. Statutes may also dictate liability. Some statutes designate the persons charged with the duty of burial but do not impose financial responsibility for burial or funeral expenses. Others impose financial liability on designated people in the order in which they are named in the statute.
Liability for burial expenses is not ordinarily imposed on someone merely because that person received a financial benefit as a result of the decedent's death. A joint tenant will not be charged with funeral expenses merely as a result of the joint ownership of property with the deceased.
Contractual Liability An individual who would not ordinarily be obligated to pay for burial or funeral expenses may accept responsibility to do so by contract. The terms of such an agreement must be very clear. The mere direction to furnish funeral services does not automatically create a contract for their payment. Liability for funeral services cannot be imposed arbitrarily. The obligation to pay the costs of a decent burial will be enforced by the law on those who should properly pay.
Although there is a lack of authority on the question of who should bear the costs of disinterment and reburial, it has generally been held as the responsibility of the person who caused it to be done.
Torts In the law of torts, there are a large number of cases involving the mishandling of corpses. These cases are concerned with mutilation, unauthorized disinterment, interference with proper burial, and other types of intentional disturbance. The breach of any duty as well as the unlawful invasion of any right existing with regard to a corpse is a tort for which an action may be commenced. For example, if the wrong body is delivered to a funeral home and the family discovers this when they attend the wake, they may be able to recover damages for mental suffering. Thus, the right of recovery is not necessarily based directly on injury to the corpse per se. Exemplary damages may be awarded in cases where the injury to plaintiffs was either malicious or resulting from gross negligence.
The award of damages is subject to appellate court review, and the adequacy or excessiveness of the amount awarded is dependent upon the particular circumstances of each case.
A tort action for damages in such cases may be maintained to protect the personal feelings of the survivors and, mainly, to compensate for the mental distress that has been caused.
Mutilation, Embalmment, and Autopsy An important component of the right to decent burial is the right to possession of the body in the same condition in which it is left by death. There is no additional basis for recovery where mutilation is caused simultaneously with death, as in the case of a person who dies in a train crash or who is fatally stabbed.
Some statutes authorize the delivery of corpses to medical colleges for dissection under certain conditions. It is mandatory, however, that the consent of relatives be obtained if such relatives can be found. Only a reasonable inquiry is necessary, the duty of which is on the school and on those delivering the body.
The unauthorized embalming of a body alone does not necessarily support a Cause of Action for damages based upon mutilation or mishandling. When such unauthorized embalming occurs, combined with the resulting mental suffering of the next of kin and other such factors, a legal action may be brought. If, for example, an unauthorized embalming contrary to the decedent's religious beliefs is performed, an actionable wrong occurs for which damages may be granted.
Generally, an unauthorized autopsy is a tort. No liability exists, however, when an autopsy is performed in accordance with the consent of the individual having burial rights or pursuant to statute or the proper execution of the duties of the coroner.
Offenses and Prosecutions
Several varied offenses with respect to corpses are recognized both at common law and under statute. At common law, it is an offense to treat a corpse indecently by keeping, handling, and exposing it to view in order to create the impression that the deceased is still alive. The attempt to dispose of a corpse for gain and profit is a misdemeanor punishable at common law. Ordinarily, it is a misdemeanor for the individual possessing the duty of having a body buried to refuse or neglect to do so, or to dispose of the corpse indecently. The burning of a corpse in such a way as to incite the feelings of the public is a common-law offense.
At common law and often under statute, interfering with another person's right of burial or neglecting to bury or cremate a body within a reasonable time after death is an offense. It is also a crime to detain a body as security for the payment of a debt.
The mutilation of a corpse is an offense at common law, and under some statutes, the unauthorized dissection of a corpse is a specific criminal offense. Someone who receives a corpse for the purpose of dissection with the knowledge that it has been unlawfully removed is subject to prosecution.
The unauthorized disturbance of a grave is indictable at common law and by statute as highly contrary to acceptable community conduct. Similarly, the unauthorized disinterment of a body is a criminal offense under some statutes and at common law.
Some statutes make disinterment for specified purposes an offense; therefore, an offense is not committed unless disinterment was done for such purposes. A case where a body was exhumed and a portion of the body was removed by the next of kin for use as evidence in a Malpractice trial, however, did not warrant prosecution for removal of the body because of mere wantonness, as set forth in a statute.
Under laws that proscribe opening a grave to remove anything interred, the act is forbidden per se and is conclusive as to the intent with which it is done. In such cases, no specific Intent, whether felonious or otherwise, needs to be shown.
Statutes that make make disinterment an offense do not apply to exhumations made by public officials attempting to ascertain whether a crime has been committed. Similarly, statutes are not directed against cemetery authorities who wish to change the place of burial and who are authorized to do so; nor are they directed against people who had obtained the permission of those having burial rights or against those who, under necessary permit, remove the corpse of a relative for reinterment.
CORPSE. The dead body (q.v.) of a human being. Russ. & Ry. 366, n.; 2 T. R.
733; 1 Leach, 497; 16 Eng. Com. L. Rep. 413; 8 Pick. 370; Dig. 47, 12, 3, 7
Id. 11, 7, 38; Code, 3, 441.
2. As a corpse is considered as nullius bonis, or the property of no one, it follows that stealing it, is not, at common law, a larceny. 3 Inst. 203.