Disposal of Remains in PA: Pt II

[This is a continuation and the conclusion of Disposal of Remains in PA: Pt I, posted March 22, 2007.]

The trial court judge had ordered Alternative No. 3 among the proffered choices -- a division of the deceased son's ashes into two parts, with each parent authorized to dispose of their portion in an individual urn.

The Superior Court found error in the principles applied by the trial court judge to arrive at such a division. A decedent's remains were not a property interest that could be owned, claimed, or divided as tangible property among survivors.

Instead, the dispute must be resolved upon the statutory and common law "authority" granted to certain qualified next of kin to direct disposition of the remains of a deceased person. A dispute about that authority should be adjudicated by a judge separately from property matters.

The court reviewed the current applicable Pennsylvania statute -- Section 305, Chapter 3, of Title 20, captioned "Right to dispose of a decedent's remains".

I summarize key points of Section 305:

• A living person can provide -- in a valid, executed Last Will to take effect after death -- for a particular manner of disposition of their remains.
• A person can make an anatomical gift from their body under §8611(a). [Unofficial Citation]
• If no provisions or gift are made, then §305(a) governs who will make the "determination of the final disposition of a decedent's remains".
• A person so designated under §305(a) still may waive that authority and agree to other arrangements.
• When a married person dies without directions, then the "surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains".
• However, a surviving spouse can forfeit that authority due to "enduring estrangement, incompetence, contrary intent, or waiver and agreement, which is proven by clear and convincing evidence" to a court.
• "Contrary intent" is "an explicit and sincere expression, either verbal or written, of a decedent adult or emancipated minor prior to death, and not subsequently revoked, that a person other than the one authorized by this section determine the final disposition of his remains."
• If there is no surviving spouse (and absent the same disqualifying events), then "the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent."
• If those disqualifying events are alleged, a court must hold a hearing "within 48 hours of the death or discovery of the body of the decedent, whichever is later".
• Pending its determination, a court may order that no final disposition of the decedent's remains take place.
• Notice of the hearing must be provided "to each person with equal or higher precedence than the petitioner", to their counsel (if known), and to "the funeral home or other institution where the body is being held".
• The court may require posting of a bond, which could be applied against counsel fees if the petitioner does not prevail.

Section 305(d) addresses the situation when two or more persons with equal standing as next of kin disagree on disposition of the decedent's remains. Then, a judge's task is to determine who should have "the authority to dispose", which "shall be determined by the court, with preference given to the person who had the closest relationship with the deceased."

The Superior Court cited two cases to guide a trial court in making a determination:

• Pettigrew v. Pettigrew, 56 A. 878 (Pa. 1904); and
• Novelli v. Carroll, 420 A.2d 469 (Pa. Super. 1980)

Despite being issued over a hundred years ago and having addressed a "reinterment" situation, the Pettigrew case remains a central case in Pennsylvania law concerning burial rights. The Pennsylvania Supreme Court held that the paramount right to control the body of a deceased person for interment is in the surviving spouse, but, if there is no spouse, then in the "next of kin".

Pettigrew required that "the wishes of the decedent and the interests of the public [must] be considered"; and also held that "the rights and feelings of the surviving spouse or next of kin are paramount".

Nearly eighty years later, in Novelli, the Superior Court expanded upon the factors that must be considered by a court in deciding a request for "reinterment."

In the current Kulp case, the Superior Court found that some of those factors would be relevant, also, in the resolution of a dispute under Section 305:

• the degree of relationship that the party seeking reinterment bears to the decedent and the strength of that relationship;
• the degree of relationship that the party seeking to prevent reinterment bears to the decedent;
• the desire of the decedent, including the “general presumption that the decedent would not wish his remains to be disturbed,” or a specific statement of desire by the decedent;
• “the conduct of the party seeking reinterment, especially as it may relate to the circumstances of the original interment;”
• the conduct of the person seeking to prevent reinterment;
• “the length of time that has elapsed since the original interment;” and
• the strength of the reasons offered in favor of and in opposition to reinterment.

The Superior Court held that the trial court did not consider the governing factors set forth in Pettigrew, as expanded in Novelli. The trial court's ruling was vacated, and the case was remanded for further fact-finding under these factors.

So a resolution in the Kulp dispute cannot be reported yet. Separately, while unaware about the pending Kulp appeal (and long before the deaths of Brown & Smith), I suggested that Section 305 should be evaluated for fairness and effectiveness. At the February, 2007 meeting of the Advisory Committee on Decedents' Estate Laws to the Joint State Government Commission, a small, ad hoc study group was authorized to examine and report upon Section 305. I am a member.

The laws of various states on these matters are summarized in a listing provided by the Funeral Consumers Alliance, of South Burlington, Vermont, entitled "Personal Preference Laws for Body Disposition". Pennsylvania's provisions are summarized by FCA, as follows:

"Pennsylvania statute Pa.C.S., Subsection 305, gives citizens the right to make a "statement of contrary intent" that will override the next-of-kin's usual authority and let the citizen designate whom he wants to control the disposition of his body."

For a more modern approach, we will review a recent statute enacted in Ohio (§ 2108.70. -- Definitions; declaration assigning right of disposition to representative), effective October 12, 2006, that authorizes an individual to appoint another to carry out specific wishes regarding disposition of remains, as specified in a statutory form ("Declaration for Disposition of Bodily Remains"). The person named in the form would have superior rights over all other individuals, including the decedent’s family members, on such matters.

Texas similarly provides a 3-page standard form (PDF) for exercise of Texans' rights, as granted under Texas Health and Safety Code §711.0, to express personal wishes, or to name an agent, regarding the disposition of remains.

Any comments on these issues, feedback on the effectiveness of the existing PA law, or suggestions as to revised statutory provisions or a new standard form, would be gladly received and taken into consideration.