Mortuary Law- Chapter 8

Question 1

The removal of a dead body or remains from its place of repose after disposition has been completed.

• Burial- digging up and removal of the remains
• Cremation- the removal of cremated remains from their repository.

Answer 1

Disinterment (Exhumation)

Question 2

In most jurisdictions, there is a strong public policy against disinterment. Many judicial decisions indicate that disinterment is not a matter of right and that ordinarily a court will not order or permit a body to be disinterred unless there is a strong showing that it is necessary and that the interest of justice requires the disinterment.

Answer 2

Disinterment Disfavored

Question 3

Even the person with ____ ____ _ ______ cannot disinter the body against the will of other relatives except upon strong and convincing evidence that persuades a court of equity that the disinterment is required by justice.

Answer 3

The Paramount Right of Disposition

Question 4

The law in principle anchors disinterment out of respect for the human desire not to have one’s remains disturbed, the sentiment of survivors and the protection of public health. Therefore, disinterment is allowable only in cases where ____ ____ for it is shown by the parties seeking to disinter a body.

Answer 4

Good Cause

Question 5

1. In the public interest
2. For private purposes

Answer 5

Disinterment may be Authorized by Law on two Principal Grounds:

Question 6

May be to further some matter of public interest although the immediate reason may be private.

Answer 6

Public Interest

Question 7

The purpose is purely private.

Answer 7

Private Purposes

Question 8

Usually involve the disinterment of the body and its reinterment in the same place. Normally made for evidentiary purposes, either for criminal or civil cases.

Answer 8

Disinterment in the Public Interest

Question 9

Has the power to seek an exhumation for the purposes of gathering evidence for a criminal trial. Courts will readily grant enforcement officers the authority to exhume bodies if requred for criminal investigations or trials.

Answer 9

The State

Question 10

Exhumantion for evidentiary purposes is permitted on the grounds that the possible existence of fraud should not be protected by the rule forbidding the disturbance of the repose of the dead.

• Stronger burden of proof is required than is required for criminal cases.

Answer 10

A Party Seeking to Affirm or Disaffirm an Alleged Cause of Death in Connection with an Insurance Policy (Civil Case)

Question 11

A court denied the request of the decedents sister to have the decedent’s body disinterred for purposes of examination to ascertain the cause of death. Although the sister suspected foul play, the court noted that there had been an autopsy prior to burial, that the sister’s suspicions were based on hearsay and on statements not under oath, and that there was nothing in the sister’s application to indicate that public officials had failed to properly determine the cause of death.

Answer 11

Application of Coleman

Question 12

May be made in the public interest to provide access for public streets.

Answer 12

Disinterment of a Body and Reinterment in a Different Place

Question 13

Disinterment in the public interest where they may consititute a threat to ____ ____, such as the possibility of contaminating well water.

Answer 13

Public Health

Question 14

Generally involves disinterment and reinterment at another place. They can be many reasons for this:

• NOK is dissatisfied with the place of interment
• Relocation of the family and the desire to be close to the place of interment.
• Bodies that have been mistakenly interned in cemetery lots not owned by the family.
• Abandoned cemeteries or in such disrepair that the court will allow disinterment.

Answer 14

Disinterment for Private Purposes

Question 15

In many states, disinterment is a matter of ____ ____. The usual procedure requires the surviving spouse and/or next of kin to make a written application to the trustees of the cemetery.

• Funeral director must be present
• Restrictions may be placed upon disinterment by the state for public health reasons.

Answer 15

Statutory Regulation

Question 16

When no statutes govern the procedure, ___ ___ is controlling.

• Interested parties must take application to a court of equity which determines whether to grant the application.
• Surviving spouse and/or next of kin have the primary right to seek disinterment.

Answer 16

Case Law

Question 17

In determining whether there is good cause to order a disinterment, courts have indicated each case must:

Answer 17

Turn in its Particular Facts

Question 18

1. The degree of the relationship that the party seeking disinterment bears to the decedent.
2. The degree of the relationship that the party seeking to prevent disinterment bears to the decedent.
3. The express wishes of the decedent.
4. The conduct of persons seeking disinterment, especially as it may relate to circumstances of the original interment.
5. The conduct of persons seeking to prevent disinterment
6. The length of time that has elasped since the original interment
7. The strength of the reasons offered both in favor and opposition to disinterment
8. The integrity and compassion of persons seeking disinterment to provide a secure and compatible resting place for the decedent.
9. The rights and principals of the religious body or other institution which granted the right to inter the body at the first place of burial.

Answer 18

Factors Courts Look at for Deciding Whether Reasonable Cause for Disinterment Exists:

Question 19

Often a court will have to balance competing interests and make a choice based upon the judge’s determination as to the ____ of each factor.

Answer 19

Importance

Question 20

The decedent, a Catholic, was burned in a Catholic cemetery. Later when her will was discovered, the executor petitioned the court allow removal to another Catholic cemetery which the decedent had named in her will. After balancing factors involved in the case, the court refused permission to disinter, finding:

• Wills are not testamentary in nature, since there is no property right in a dead body in the ordinary sense.
• A body is the custody of the law and removal is subject to the jurisdiction of this court. Such power, however, should not be exercised unless it is clearly shown that good cause and urgent necessity for such action exists.
• The decedent is already buried in the ground which, according to ecclesiastical law and the doctrine of her church, is concentrated and hallowed.
• The cost incident to the removal to another cemetery compared to the size of the estate would be excessive.

Answer 20

Guerin v. Cassidy

Question 21

Although religious law may be evidence to show the customs and wishes of those who observe its mandates:

Answer 21

It is not Binding in the Court

Question 22

The defendent, an Orthodox Jewish Cemetery, sought to prevent the decedent’s next of kin from removing the decedent’s remains to a Reformed Jewish Cemetery. The court held that the restriction in the cemetery deed prohibiting removal was in conflict with the statutory right of the next of kin to seek disinterment. The court therefore permitted the removal on the basis that a private contract grounded in ecclesiastical law cannot nullify an existing statute.

Answer 22

Tamarkin v. Children of Isreal, Inc.

Question 23

Oftentimes courts are called upon to settle:

Answer 23

Family Disputes Regarding Disinterment

Question 24

A widow sought to hve her husband’s remains removed from her in-laws’ property. The evidence showed that the parents of the decedent and the wife were very hostile to each other.

• The court noted that the parties were Jewish and that Jewish custom did not favor disinterment
• The court recognized the judicial principal that courts do not ordinarily permit disinterment unless there is a compelling reason to justify it.
• The court noted that in this case there was no record of what the preferences of the decedent were.
• The court found that the wishes of the spouse should command first consideration.
• Balancing the factors, the court allowed the wife to disinter the body and relocate it to another cemetery.

Answer 24

Mallen v. Mallen

Question 25

If the funeral director has any doubts as to the proper authorization for disinterment, he should not participate in such disinterment until he has been assured that it has been ____ ______.

Answer 25

Legally Authorized

Question 26

It is an indictable offence under ____ and ____ ___ to disinter a dead body without proper authority regardless of the purpose or motive.

Answer 26

Statute and Common Law

Question 27

The members of a Board of Commissioners who opened graves in a town cemetery for the purpose of removing bodies for reburial in the free section of the cemetery because the original graves were unpaid for were guilty of a statute forbidding disinterment except with the consent of surviving spouse or next of kin.

Answer 27

State of North Carolina v. Mclean