The Florida Legislature recently has answered the emotional question of how a dispute of over a person’s cremated remains is to be split resolved. Two years ago, there was a court case involving a dispute between two divorced parents over the disposition of their son’s ashes. The father argued the ashes were assets of his son’s probate estate, so they should split like the rest of their son’s property, 50/50 with his ex-wife. The court ruled against him and the legislature now has codified the correctness of that decision.
Effective, July 1, 2016, new Florida Statute 497.607(2) states:
Cremated remains are not property, as defined in § 731.201(32), and are not subject to partition for purposes for distribution under §733.814. A division of cremated remains requires the consent of the legally authorized person who approved the cremation or, if the legally authorized person is the decedent, the next legally authorized person pursuant to §497.005(43). A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.
What this new law means is that your dead body, whether intact or cremated, is not “property” which would pass according to general rules of construction found in the probate code. For example, a paragraph in a Will leaving all of my property to “x” would not include disposition of your body. Typically, that disposition would be controlled by the Personal Representative of your estate as the “legally authorized person”. We are encouraging our clients to be very specific in their Wills about their burial or cremation wishes so that the Personal Representative has clear directions to follow. We now have heard from the legislature as how best to avoid tragedies like the case involving parents fighting over their son’s remains. Making your burial wishes specifically known in valid estate planning documents is up to you.