Wilson v. Wilson

Wilson v. Wilson, --- So.3d --- (Fla. 4th DCA 2014), 2014 WL 2101226

This case involved a dispute between two parents over the disposition of their deceased son's ashes.  They agreed to have their son cremated, but disagreed about where to bury the ashes.  The father argued that the ashes were "property" under F.S. 731.201(32), and thus should be subject to partition among the decedent's heirs.  The mother was opposed to having the ashes divided for religious reasons.  The trial court ultimately found that the ashes were not "property" subject to partition, and gave the parents 30 days to decide how to dispose of the ashes.

On appeal, the Court affirmed the trial court's holding that the ashes were not property under F.S. 731.201(32).  In doing so, the Court reviewed how courts have treated ashes and deceased bodies over time.  Blackstone wrote that bodies and ashes were not the property of an heir.  English case law continued to express this view that there is no property interest in a corpse.  

The Court explained that Florida had continued the English tradition of excluding corpses and ashes from the definition of "property."  The Florida Probate Code defines property as "both real and personal property or any interest in it and anything that may be the subject of ownership."  F.S. 731.201(32).  Yet Florida courts have repeatedly held that there are no property rights in the remains of a decedent, and that the property right of a personal representative in the remains is limited to possession of the body for purposes of burial or disposition.  

Both parents relied on out-of-state cases dealing with feuding parents over the disposition of their deceased child's remains to support their position.  In Indiana, a court allowed ashes to be divided, since the practice of dividing remains of a decedent is common in the funeral service industry.  However,  the Florida Court found this case distinguishable, since the Indiana court did not make a finding that the remains were subject to division as inherited property, and there was evidence that the deceased child had wanted her ashes to be divided.  In Pennsylvania, a court refused to allow ashes to be divided, holding that the trial court abused its discretion in using its equitable powers to override the desires of one of the next of kin as to the division of the remains.

The Florida Court held that the out-of-state cases were irrelevant, since Florida precedent clearly holds that a decedent's remains are not "property," and expressly adopted the following language of an earlier decision on this issue: 
It is a sorrowful matter to have relatives disputing in court over the remains of the deceased.  In this case in particular, there is no solution that will bring peace to all parties.  We express our sympathies to both sides in their loss, which must be magnified by these proceedings.  Cases such as this require the most sensitive exercise of the equitable powers of the trial courts.  We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented.

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