"[T]he law, in its all-sufficiency, must furnish some rule, by legislative enactment or analogy, or based on some sound legal principle, by which to determine between the living questions of the disposition of the dead and rights surrounding their bodies. In doing this the courts will not close their eyes to the customs and necessities of civilization in dealing with the dead and those sentiments connected with decently disposing of the remains of the departed which furnish one ground of difference between men and brutes."1
What do "celebrity" Vickie Lynn Marshall, a/k/a Vickie Lynn Smith, a/k/a Vickie Lynn Hogan, a/k/a Anna Nicole Smith; "Godfather of Soul" James Brown; baseball players Ted Williams and Kirby Puckett; artist Mark Rothko; some United States service members killed in the Iraq War; and even the Reverend and Mrs. Billy Graham have in common? All have been the objects of disputes over who controls final disposition of their mortal remains. Those, in turn, have brought into public scrutiny an ancient legal issue--who decides the place and method of disposal of the bodies of the dead. That very fundamental question has been important since the dawn of humanity. More or less elaborate burial rituals date back to Paleolithic times, and have been issues for the Hebrews, Egyptians, Scythians, Persians, Greeks, Romans, Christians, Buddhists, Vikings, and other civilizations up to and including those in the present.2 The logical inquiry is, in turn, who attends to the application of the appropriate one to an individual decedent.
The ancient Greeks and Romans, and those who followed them in the Christian era, were ordinarily careful to honor the express directions of the deceased regarding the final disposition of his or her body.3 In Greek and Roman times this included cremation, but doing so was not allowed in Christendom, including both England and the United States, until roughly 1885 and the decision in Regina v. Price.4 In each case, however, the equity court considers the particular circumstances,5 and might let the sentiments of a surviving spouse trump the dead spouse's request6; this is far less likely in the event of the wishes of remoter relations such as children, parents, or siblings.7 The desires of the dead might be preserved in writing in a will or other testamentary document, or even merely be expressed orally.8 In some cases an oral expression can displace burial directions expressed in a will.9
If a decedent does not express a preference for the place and manner of burial, then that is determined by the surviving spouse, so long as he or she is not estranged from the deceased,10 and if there is no surviving spouse then by the next of kin in the order of adult children, parents, siblings, or more distant kin.11 This principle might be altered to take into consideration circumstances of special intimacy or association with the dead relation,12 as well as any "bad behavior" towards the decedent by the relative asserting a claim over the remains.13 If the person entitled to determine the right of burial is a minor, then the decision ordinarily is left to the adult next of kin to the decedent from the minor. Thus, a grandmother's decision on burial prevailed over the wishes of a minor brother of the deceased, and three brothers selected the funeral spot of the parent of two minor children.14
This system, of course, disregards the true nature of the "family" of some deceased persons, as it fails to take into account non-traditional relationships. Most significantly, it cuts off the unmarried partner of the decedent in either same-sex or heterosexual relationships.15 In the worst-case scenario, the blood relations of the deceased, who do not approve of the relationship with the partner, can exclude him or her from the funeral, much less let his or her input influence the place and nature of the disposition of the remains.16 Some states have altered their law to help insure such results do not occur.17 There is case law to support this. For example, in Stewart v. Schwartz Bros.-Jeffer Memorial Chapel, Inc.18 there was a dispute between Drew Stanton's blood relations and his same-sex partner for a period of five years over disposition of Stanton's remains. After examining the close relationship in question the court concluded the partner was "a representative of Stanton's wishes for the disposition of his remains."19 Thus, the blood kin lost to the person the court found had the closest relationship with Stanton even though there was no legal tie between them. In order finally to resolve the case, the parties settled it through"[d]isplaying the wisdom of King Solomon" by having Stanton cremated and splitting the ashes between the partner and Stanton's relatives.20
Felipe v. Vega21 is the flip side to Stewart. There, the male decedent Edilberto was survived by Ana, his female partner of five years; their infant daughter Sueheidi; and adult blood relations including his father. The evidence was clear that despite the failure to marry Edilberto and Ana were devoted to one another; indeed, Ana spent considerable time tending to Edilberto's grave. The court was willing to look past the technical lack of a legal relationship and rule based upon what it believed Edilberto would have wanted even though New Jersey does not allow common law marriage. When sitting in equity the court considered that it could do that which seemed equitable.
Epic battles have arisen in mortal remains cases; not all have involved the rich and famous. Perhaps the most shocking example of such disputes is the saga of Olga Gallagher. Olga died in Connecticut on December 5, 1961 and her husband Kenneth Gallagher arranged to have her body cremated. Her parents, Evelyn and Sampson Tkaczyk, vigorously opposed this plan as a violation of their religious beliefs. They challenged Kenneth's plan in state court, but he was awarded custody of Olga's remains in January 1962. Over the ensuing years the Tkaczycks launched an intermittent barrage of attacks in Connecticut state court against the planned cremation.22 Their challenges included four unsuccessful requests for the intervention of United States Supreme Court Justice John Marshall Harlan.23 When these proved for naught they moved to federal court. In what was undoubtedly a Pyrrhic victory, Kenneth eventually prevailed.24 What is most shocking about the matter, however, is not that it dragged on as long as it did. The truly disturbing thing is that Olga's corpse rested in a cold storage vault at a New Haven cemetery for five years as the suit raged on and on at enormous cost of legal fees and judicial time.25 Undoubtedly hardly what Olga would have wanted.
Turning to the decisions involving notable individuals, they run the gamut of the law. The most famous disposition of remains case to date clearly was that of Anna Nicole Smith, former Playboy magazine "Playmate of the Year" and widow of oil billionaire J. Howard Marshall II.26 There, Anna Nicole Smith was survived, for all essential purposes, by no spouse (she never legally married her attorney/lover, Howard K. Stern); one five month old infant minor child, Dannielynn Hope Marshall Stern; and her long-estranged mother, Virgie Arthur. Three days after the September 7, 2006 birth of Dannielynn in Nassau, Bahamas, Ms. Smith's twenty-one year old son Daniel Wayne Smith, with whom Ms. Smith was particularly close, had died in Ms. Smith's Nassau hospital room of a drug overdose. He ultimately was buried in the Bahamas. Ms. Smith herself died on February 8, 2007 of a drug overdose while visiting Broward County, Florida as a declared resident of the Bahamas. Ms. Smith left no written instructions regarding disposal of her last remains, either in her will or elsewhere.
Ms. Arthur alleged she was Ms. Smith's next of kin, and sought possession of Ms. Smith's remains to bury her in her native State of Texas (Ms. Arthur also indicated she wanted to have Daniel Wayne Smith exhumed and shipped to Texas for interment). Ms. Arthur alternatively testified in the Broward County proceeding that Ms. Smith had told her she wanted to be buried in Texas and in California next to actress Marilyn Monroe (whom Ms. Smith idolized and sought in her lifetime to emulate), but acknowledged she had had little contact with Ms. Smith during the last ten years of her life. There was other testimony, and the court so found, that Ms. Smith intentionally chose to bury her son Daniel in the Bahamas, that she wished to be buried next to him, and that she had purchased four burial plots in the Bahamas with the specific intention of being buried in the one next to Daniel. The court ruled that since Ms. Smith had left no written instructions as to her choice of burial spot the decision as to her place of interment was, pursuant to Florida case law, up to her next of kin, Dannielynn, as represented by her guardian ad litem.27 The court, in particular, cited a Florida precedent, Leadingham v. Wallace,28 which held that a decedent's minor children, as represented by their guardian, rather than the decedent's father, were the next of kin to the decedent. Thus, the court ordered Ms. Smith's remains released to Dannielynn's guardian to be disposed of within his sole and absolute discretion, being at all times guided by the best interests of Dannielynn. The guardian chose burial in the Bahamas next to Daniel Wayne Smith.
On appeal to the Florida Fourth District Court of Appeal, Ms. Arthur argued on several grounds that she was entitled to determine the disposition of Ms. Smith's remains. However, the court denied her claim on the sole basis that Ms. Smith clearly orally had expressed her intention that she be buried in the Bahamas next to her son Daniel, and that doing so was consistent with the various Florida precedents.29 Clear and convincing evidence of Ms. Smith's wishes persuaded the court, which never addressed the relative rights of Ms. Arthur and Dannielynn as next of kin to Ms. Smith to determine the burial site upon which the trial court had based its holding.30 As noted, this decision was consistent with rulings in other states.
Upon the death of James Brown, a dispute broke out between his partner Tomie Rae Hynie (she was not his legal wife as she was married to someone else at the time of her alleged marriage to Brown) and Brown's adult children concerning the fate of Brown's body. Brown's refrigerated remains sat at an undisclosed location for over ten weeks before all parties agreed to having him placed in a temporary burial vault in the yard belonging to one of his daughters until a proper mausoleum could be erected at Brown's South Carolina estate along the lines of the one occupied by Elvis Presley at his Graceland mansion.31
July 5, 2002 saw the death of baseball immortal Ted Williams. The Hall of Fame Boston Red Sox outfielder had one of the most storied careers in the history of major league baseball and was been generally recognized as "the greatest living ballplayer."32 He also was renowned as a world-record-holding fly fishing angler and deep sea fisherman and a United States Marine Corps fighter pilot in both World War II and the Korean conflict. His death brought fame of a different sort as his son and one daughter battled over possession and disposition of his earthly remains. Within a few days of his death the dispute raged between son John Henry Williams and daughter Barbara Joyce Williams Ferrell. Ferrell alleged Williams wanted to be cremated and have his ashes spread over the Atlantic Ocean pursuant a 1996 will and sued in yet another Florida court to have that done. John Henry produced an "oil stained paper scrap" from the year 2000 allegedly signed by his father and stating he wished to be cryogenically frozen. Williams' daughter Claudia supported the validity of John Henry's claim. As the months passed legal costs mounted, and Ferrell publicly solicited funds to help her fight the cryonic note. Despite the will Ferrell faced an uphill struggle, and eventually ran out of money for legal fees. Finally, the case settled and William's head was frozen and stored in one steel tank at a location in an Arizona desert and the remainder of his body was similarly preserved in a nearby container. The whole fiasco was a case where a will provision was trumped by a supposed later expression of intent via a note signed by a testator.33
The March 6, 2006 death in Arizona of Minnesota Twins Hall of Famer Kirby Puckett presented yet another mortal remains dispute featuring a dead baseball icon. Six days later he was cremated in Minnesota and his ashes were retained at a local funeral home. Puckett's fiancée, Jodi Olson; two minor children by a previous marriage; and numerous siblings survived him. Puckett and Olson had been together since 2004, and planned to get married in June 2006. Olson "assumed" she would get the ashes due to the impending marriage and because she would fulfill Puckett's wishes by spreading at least some of them over an inner-city baseball diamond. However, since she was not yet Puckett's spouse she was entitled to them under neither Arizona nor Minnesota law. Instead, an Arizona judge awarded them to Puckett's children as his next of kin. They were handed over to the children's guardian, their mother, Puckett's ex-wife. Probably not what Puckett would have wanted had he been asked, given the bad blood which had existed between the two of them.34
Famous abstract expressionist artist Mark Rothko committed suicide in 1970 and was buried in a cemetery plot which belonged to a friend. He rested there until 2006, when his two children decided they wanted him moved. They went to court, and in 2008 Rothko was transferred to a Jewish cemetery where his children intended to have him rest alongside their mother, with whom he had been estranged at the time of his death. Perhaps not the person next to whom he would have wanted to spend eternity?35
A particular problem has arisen over disposition of the remains of some American military personnel killed in the Iraq War. According to service regulations bodies are awarded to the elder parent of unmarried deceased victims who have no adult issue. This creates no problem when the parents are married, but if they are not they may fight over who gets the remains. And, the rules do not provide for non-traditional situations where the decedent may have a partner or someone else he or she would like to posses his or her body. In the case of Army Staff Sergeant Jason Hendrix his mother, who was younger than his father, sued in California in an effort to obtain his body despite the military policy, but a state judge refused to disregard the Army rule and left Hendrix with his father. A member of the United States House of Representatives has tried to give military personnel the right to designate who will get their bodies if they are killed rather than have the matter handled pursuant to the blanket regulations. Meanwhile, fallen heroes are interred pursuant to military rules rather than their own wishes.36
Perhaps the most bizarre situation of all involved the Reverend Billy Graham and his wife Ruth. Although Reverend Graham is still alive, his two sons squabbled for some time over who would gain custody of his body when he dies, and thus determine where he will be buried. When Ruth Graham died in 2007 Reverend Graham announced where the two of them would rest, thereby resolving the issue.37
In sum, the law regarding disposition of the remains of the dead can be complex. If the decedent has expressed a preference it usually will prevail. If not, a battle may ensue among traditional and/or non-traditional family members, and it can be hard to predict how a court will resolve the issue. It is important that attorneys encourage their clients to state, either in their wills or other written documents, their choice for burial arrangements (the author of this article and his wife both have left written instructions regarding the final disposition of their bodies and have orally discussed the matter with one another as well). Lacking that, they at least orally should indicate their desires on that subject to their next of kin. Advise them how important it is to do so, as having all on the same page can avoid unseemly post-mortem disputes which can turn what should be a solemn and dignified process into a circus-like sideshow event such as ensued when Anna Nicole Smith, James Brown, Ted Williams, and Kirby Puckett died. This will be especially crucial in case the deceased wants his or her remains controlled by a non-traditional custodian/recipient. Getting the family to agree to this in advance can avoid later conflict and the disappointment and distress which occurs when a beloved partner loses out to a family member. When the parties cannot avoid litigation, they at least can try to minimize its financial and psychological cost through the use of some form of alternative dispute resolution.38 Ultimately, a court must exercise its equitable power to insure an appropriate final resting place for a member of a group which merits the utmost protection, the dead.
* B.A., University of Virginia; J.D., Duke University School of Law; Professor of Law, Louis D. Brandeis School of Law at the University of Louisville. An abbreviated version of this article appeared in Louisville B. Briefs, May 2007, at 24.
1 Louisville & N. R. Co. v. Wilson, 51 S.E. 24, 25 (Ga. 1905).
2 See, e.g., Percival E. Jackson, The Law of Cadavers and of Burial and Burial Places 6-10 (2d ed. 1950); James T. R. Jones, Evidentiary Autopsies, 61 U. Colo. L. Rev. 567, 570 (1990), reprinted in 40 Def. L.J. 251, 254-55 (1991); Ann M. Murphy, Please Don't Bury Me Down in That Cold Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains, 15 Elder L.J. 381, 384-86 (2007).
3 E.g., Cottingham v. McKee, 821 So. 2d 169, 171-72 (Ala. 2001); Jackson, supra note 2, at 42-48; Frances H. Foster, Individualized Justice in Disputes Over Dead Bodies, 61 Vand. L. Rev. 1351, 1390-91 (2008); Tracie M. Kester, Note, Uniform Acts--Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, 29 W. New Eng. L. Rev. 571, 577-79 (2007).
4 (1884) 12 Q.B.D. 255. See Hugh Y. Bernard, The Law of Death and Disposal of the Dead 87 (2d ed. 1979); Jackson, supra note 2, at 8-9, 43-44.
5 "There is no universal rule regarding the right of persons to bury the dead, but each case must be considered in equity on its own merits." Estes v. Woodlawn Mem'l Park, Inc., 780 S.W.2d 759, 762 (Tenn. Ct. App. 1989). Accord Kulp v. Kulp, 920 A.2d 867, 871 (Pa. Super. Ct. 2007) ("[I]n determining the disposition of a decedent's remains . . . each case [must] be considered on its own merits."). See Foster, supra note 3, at 1355-56.
6 Jackson, supra note 2, at 46-47. See Foster, supra note 3, at 1356, 1361-62.
7 E.g., Pettigrew v. Pettigrew, 56 A. 878, 880 (Pa. 1904); Novelli v. Carroll. 420 A.2d 469, 472 (Pa. Super. Ct. 1980); Kester, supra note 3, at 587.
8 Jackson, supra note 2, at 48; Foster, supra note 3, at 1391-92. See Bruning v. Eckman Funeral Home, 693 A.2d 164, 166 (N.J. Super. Ct. App. Div. 1997) (oral or written non-testamentary wishes of deceased considered). Of course, at times the will would only be read after interment of the decedent, and thus his or her wishes might be frustrated. E.g., Tanya K. Hernández, The Property of Death, 60 U. Pitt. L. Rev. 971, 1020 (1999); Kester, supra note 3, at 585.
9 E.g., Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953-55 (Fla. Dist. Ct. App. 2005). See Murphy, supra note 2, at 402-03; Kester, supra note 3, at 584-85.
10 Estes, 780 S.W.2d at 762; Bernard , supra note 4, at 19; Jackson, supra note 2, at 52; Foster, supra note 3, at 1397-98.
11 Bernard, supra note 4, at 20; Jackson, supra note 2, at 51-55; Foster, supra note 3, at 1365. Some states resolve priority issues by statute, while others follow common law principles. The two are generally very similar. See Murphy, supra note 2, at 400-01.
12 Bernard, supra note 4, at 21; Jackson, supra note 2, at 53-54; Foster, supra note 3, at 1395-96.
13 Foster, supra note 3, at 1371-72.
14 Jackson, supra note 2, at 54-55. In Caseres v. Ferrer, 774 N.Y.S.2d 372, 373 (App. Div. 2004) the eldest surviving sibling of a victim of the September 11, 2001 terrorist attack on the World Trade Center was awarded the remains of the decedent in priority over his two minor children.
15 See Foster, supra note 3, at 1365-66; Jennifer E. Horan, Note, "When Sleep At Last Has Come": Controlling the Disposition of Dead Bodies for Same-Sex Couples, 2 J. Gender Race & Just. 423 (1999).
16 Foster, supra note 3, at 1365-66.
17 Id. at 1367, 1369.
18 606 N.Y.S.2d 965 (Sup. Ct. 1993).
19 Id. at 967. See Horan, supra note 15, at 451-52.
20 Stewart, 606 N.Y.S.2 at 969. See In re Estate of K.A., 807 N.E.2d 748 (Ind. Ct. App. 2004) (court divided ashes of deceased child equally between divorced parents). But see Kulp v. Kulp, 920 A.2d 867 (Pa. Super. Ct. 2007) (court required further findings before authorizing dividing ashes of deceased child between divorcing parents).
21 570 A.2d 1028 (N.J. Super. Ct. Ch. Div. 1989).
22 E.g., Tkaczyk v. Gallagher, 222 A.2d 226 (Conn. Super. Ct. 1965).
23 See Tkaczyk v. Gallagher, 259 F. Supp. 584, 588-91 (D. Conn. 1966).
24 Id. at 587; Tkaczyk v. Gallagher, 265 F. Supp. 791 (D. Conn. 1967).
25 For more on the dispute, see Kester, supra note 3, at 588-89
26 In re Marshall, No. 07-00824 (61) (Fla. Broward Co. Cir. Ct. Feb. 22, 2007), reprinted in In the Matter of Danielynn Hope Marshall Stern, 20 Quinnipiac Prob. L.J. 184 (2007), aff'd sub nom. Arthur v. Milstein, 949 So. 2d 1163 (Fla. Dist. Ct. App. 2007).
27 See Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1959) ("It is well settled that, in the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has the right to the possession of the body of a deceased for the purpose of burial, sepulture or other lawful disposition which they may see fit.").
28 691 So. 2d 1162 (Fla. Dist. Ct. App. 1997).
29 See also Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Fla. Dist. Ct. App. 1997) (requiring personal representative to cremate decedent pursuant to express provision in decedent's will).
30 Arthur, 949 So. 2d at 1166. Like in Tkaczyk v. Gallagher, the wrangling in the Smith case was doubtless contrary to what she would have wanted. Ms. Smith always cared a great deal about her personal appearance, but due to rapid decomposition of her already embalmed corpse she had to be buried in a closed casket rather than be viewed in the open in her resplendent, and copious, glory. See Foster, supra note 3, at 1352.
31 See Foster, supra note 3, at 1352; Murphy, supra note 2, at 409.
32 Bryan L. Josias, Note, Burying the Hatchet in Burial Disputes: Applying Alternative Dispute Resolution to Disputes Concerning the Interment of Bodies, 79 Notre Dame L. Rev. 1141, 1160 (2004.).
33 For the overall background and ultimate resolution of the Williams case, see Foster, supra note 3, at 1353-54; Josias, supra note 32, at 1158-61; Kester, supra note 3, at 571-72, 584.
34 See Foster, supra note 3, at 1363; Murphy, supra note 2, at 382-83.
35 See Foster, supra note 3, at 1354 n.15.
36 See Murphy, supra note 2, at 409-10; Kester, supra note 2, at 589.
37 See Foster, supra note 3, at 1353; Murphy, supra note 2, at 409.
38 See Josias, supra note 32, at 1177-81.