By Stan Billingsley Jan. 12, 2009
This week I received a package that I mistook for a belated Christmas gift. My wife carried the package into my office and said here’s something “from your nephew Pat”.
A few hours later when I got around to opening the package (probably a Fruit Cake or a basket of Fruit I was thinking) I found a silver heart shaped metallic box. For some reason it occurred to me that this must be a gift of expensive chocolates. Great, I love chocolate!
The silver container was about four inches long and four inches wide. I tried to find a way to open it but after a few minutes of failing to find the secret to opening this container, I gave up (thank goodness!).
I rummaged through the shipping package and discovered a note. The package was not from my nephew Pat, it was from my sister-in-law Pat, and the note explained that the silver box contained the cremated remains of my brother Rodger who died just before Christmas. (She called them “cremains”.) I then remembered that my sister-in-law had mentioned that she would be sending the cremains. The mind has a strange way of ignoring information one does not know how to handle I suppose.
My first thought was relief that I had failed to discover the secret on how to open the container. That would have presented issues I was not ready to deal with.
My brother Rodger was two years older then me at the time of his death due to a heart attack. He was a Viet Nam veteran, and lived in Wyoming. He had no children but had the good fortune of remaining married to the same remarkable woman for 41 years.
This experience is a novel one to me. What does one do with the cremains of a loved one? At the moment I have placed Rodger on a book shelf. Should I leave him there or should I find some more creative and appropriate disposition for Rodger?
We all have seen movies and television programs of people dealing with cremains and most of them have a humorous scene where the remains accidentally are spilled, dropped or whatever. Other representations have the loyal survivor spreading their loved ones cremains on a beautiful beach or at the scene of some event that was of importance and meaning to the deceased. Over the years, and largely due to the fact he lived in Wyoming and I live in Kentucky, we did not see each other often. I am confronted with the issue that I should have known more about him, and admit a sense of guilt that I failed to stay closer to him. I am therefore left without a great deal of knowledge about any events that were of great interest and meaning to him.
Being a lawyer, it occurred to me that I should start my search for an answer to this question by researching the law to see what I was legally entitled to do with Rodger.
I conducted a search of the Kentucky Revised Statutes and found no guidance there. There are laws about the “improper” disposition of remains, but no real prohibitions about tossing ashes into the wind or waters of the Commonwealth. I found one case from 1947 that said my brother Rodger was entitled to a “Christian burial”. Just what, I wonder, is a “Christian burial”? I’m pretty sure Rodger was a Christian. (This is one case ruling that the atheists have apparently overlooked). He had a certain Zen like approach to life and pretty much did what he wanted throughout his life. While I don’t think he ever studied the Torah he might have taken up the Jewish faith. I am pretty sure that he wasn’t a Muslim. But why did the highest court in Kentucky specify that he was entitled to a “Christian burial”? Are Jewish, Buddist or Muslim burials that much different or unworthy of recognition by the courts? Rodger had a proper “funeral” ceremony, and the local chapter of the American Legion was there, fired a salute and gave his widow an American flag. The proper prayers were said, announcements were printed, a notice is the local paper was published, and friends and loved ones gathered. Donations to his favorite charity were made. Flowers were sent. Does that satisfy the courts? KRS 525.120 (1) says it is illegal to do anything that would “outrage ordinary family sensibilities”. What does that mean? I can imagine that some solutions I might come up with to this question might outrage some family members and might be found acceptable by others. However, there is no statute that specifically says Rodger has to be placed in the ground.KRS 381.700 says that as a property owner, one must “properly care” for any burial grounds. If I place him in the back yard can I be cited for a violation of the law if I don’t keep the yard mowed? (I do mow my yard regularly. Well to be truthful, I pay someone to mow my yard regularly.) I searched under the title Public Health, and couldn’t find a relevant statute. I searched under Occupations and Professions and found only licensing requirements for undertakers. In checking the case law for reference to the word “funeral” I found 954 cases which discuss funeral expenses, rights to make funeral decisions, operation of funeral homes rights of ex-wives, etc. but no limitations on the handling of cremains. The courts and the legislature have pretty much left the decision to me to decide what to do with Rodger. No one else is charged with the responsibility to relieve me of this decision (and no one is standing in line to relieve me of this responsibility). I am not yet ready to make a decision, but I know that I have a great responsibility to do the right thing. For the moment I will leave Rodger in the silver box on my book shelf until a better solution occurs to me. Perhaps it is not a bad thing that I may be spending some time with Rodger in my home to make up for all those years when we were so far apart. One thing I know about Rodger, is that he would love all this.Authorities:
Terrill’s Adm’R v. Davis, 303 Ky. 758 (KY, 1947)
Dead Bodies. — A person is entitled to a Christian burial and it cannot be delayed to determine upon whom legal obligation to proceed with burial rests most heavily, and undertaker should not be compelled to await an adjustment of any dispute that might arise.KRS 381.700 Care of burial grounds by owners.
The governing authorities of any city within whose corporate limits any burying grounds lie may require the owner or those having claims to the grounds to properly care for them.
Effective: October 1, 1942
History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2741p-2.
KRS 525.120 Abuse of corpse.
(1) A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 276, sec. 8, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 490, sec. 1, effective July 14, 2000. — Created 1974 Ky. Acts ch. 406, sec. 222, effective January 1, 1975.
KRS 307.300 Improperly interred body or cremated remains.
(1) In any instance where the operator of any cemetery is informed or becomes aware that it has improperly interred or has allowed to be improperly interred a body or cremated remains, including but not limited to interment in the wrong space, the burial container shall be disinterred and properly reinterred.
(2) Prior to disinterment and proper reinterment of the body or cremated remains, the cemetery shall give reasonable notice to the next of kin of the deceased and, if requested, the owner of the burial space, informing them of the improper interment and the agreed-upon date of the disinterment and proper reinterment.
(3) The expense of the disinterment and proper reinterment shall be paid by the cemetery in which the body or cremated remains were improperly interred.
Effective: July 15, 2002
History: Created 2002 Ky. Acts ch. 276, sec. 5, effective July 15, 2002.
KRS 72.450 Disposal of body and valuables found thereon.
(1) A coroner who has possession of a dead body or a part thereof shall make a bona fide attempt to notify the spouse, if any, or next of kin of the decedent’s death. In the event the coroner is unable to locate the spouse, if any, or next of kin, he or she may cause the body to be buried at the expense of the fiscal court, consolidated local government, or urban-county government, whichever is appropriate.
(2) In the event the body is buried at public expense, the coroner shall take possession of all money or other property found on or belonging to the decedent and shall deliver same to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate. Any money or other property found on the body of the decedent or belonging to him or her shall be delivered by the coroner to the fiscal court, consolidated local government, or urban-county government, whichever is appropriate, to help defray burial expenses. Any excess funds shall escheat to such governmental agency one (1) year thereafter.
(3) In lieu of having an unclaimed body buried at public expense, the coroner may deliver such body or part thereof to a state medical school in accordance with the provisions of KRS 311.300 to 311.350.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 346, sec. 74, effective July 15, 2002. — Created 1978 Ky. Acts ch. 93, sec. 14, effective June 17, 1978.
Martinez v. Employers Insurance of Wausau, 1999 KY 42109 (KYCA, 1999)
One who is entitled to the Disposition of the body of a deceased person has a cause of action in tort against one who intentionally, recklessly or negligently mistreats or improperly deals with the body, or prevents its proper burial or cremation. The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a “property” or a “quasi-property” right.
This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress. * * * There is no need to show physical consequences of the mental distress.