The Florida Bar News
July 15, 2004

The Law of the Body

By Steven N. Gosney

    I read with great interest the column in the June 1 [Florida Bar] News regarding the quasi property rights attaching to the remains of a deceased after death. I would suggest that the "right" is broader than is implied by the column.

    It is the commonly held belief that once burial has taken place, no person has the authority to remove the remains. This view, however, is not supported by Florida Statutes or case law. The right must include more than just the right to burial, as suggested by Crocker v Pleasant, 778 So 2d 978 (Fla. 2001), that describes the quasi-property right as entitling the holder to possession and control of the body for the single purpose of a decent burial. The Florida Supreme Court in State of Florida v Powell, 497 So 2d 1188 (Fla. 1986), describes the right as "the right to possess the body of the decedent for the purpose of burial, sepulture, or other lawful disposition." Florida Statute §470.0295(3) specifically contemplates "disinterment and reinterment" by a "legally authorized person." Additionally, the power of eminent domain may be used to remove human remains from real property (Walker v Georgia Power Co., 177 Ga. App. 493 (1986); Bitney v Grim, 73 Ore. 257 (1914)).

    All of the above support the proposition that there is a public policy interest in allowing the removal of human remains from real property, rather than the restrictive view that land is forever untouchable after a burial, or that the right dissipates once exercised.

    A living holder of this right can order the disinterment and reinterment, or other legal disposition, of remains under his or her control. The right is not property of the estate but passes automatically by operation of law. Under this interpretation, once the holder of this right dies, the next surviving person on the statutory list could order the disinterment and reinterment of the remains of the decedent once again. Using this right, families could extend their inter-family conflicts to the remains of their long-gone relatives. This could even result in an unending contest between survivors over the remains of their lost relatives. Ultimately, the last person on the "list" who cares enough to spend their money to relocate the remains determines where the body ultimately resides.

    The best advice for estate planning practitioners is to include in your estate planning client's will a specific direction as to the disposition of their remains after death, and a specific written inter vivos instruction referring to the contents of the will. I hope this shines some light on this obscure but fascinating issue.