Letting the dead bury the dead: Missouri's right of sepulcher addresses the modern decedent's wishes.

AuthorNaguit, Kimberly E.

Missouri Revised Statute [section] 194.119 (1)

  1. INTRODUCTION

    September 22, 2005: seventeen-year-old Caitlyn from St. Charles, Illinois, dies. (2) Caitlin's mother wants to scatter some of her ashes and have the rest made into necklaces for relatives, but her father wants to give her a "proper burial." (3) The two reach a settlement in court nearly a year later, with the father getting a portion of the remains. (4)

    February 26, 2008: a man's body has been in a funeral home cooler in Springfield, Illinois, for nearly fourteen months while his two daughters fight in court over his estate and the means of disposing his body. (5) The funeral home asks the court for permission to dispose of the body when the women refuse. (6)

    November 13, 2008: a widow wins a court battle against her parents-in-law to have her husband's body moved from its current resting place near the residence of her parents-in-law to a national cemetery for the Royal Canadian Mounted Police. (7)

    These disputes among a decedent's survivors are, unfortunately, far from uncommon. Spouses, parents, siblings, and other relatives feud over multiple aspects of funeral arrangements--everything from the type of casket to the division of cremated remains. With today's increasing movement away from the "'traditional' family" paradigm, battles may involve ex-spouses, same-sex partners, and children from multiple marriages. (8) The evolving concept of who belongs in a person's "family" is one factor that may result in increased "family feuds" at the funeral home. (9)

    The right of sepulcher refers to "the right to choose and control the burial, cremation, or other final disposition of a dead human body." (10) until recently, the law for sepulcher in Missouri was based on the traditional family, giving a decedent's spouse, children, parents, and siblings highest priority (11)--often even over the wishes of the decedent herself. (12) A recent amendment to Missouri Revised Statute Section 194.119 now gives top priority for the right of sepulcher to "[a]n attorney in fact designated in a durable power of attorney wherein the deceased specifically granted the right of sepulcher over her body to such attorney in fact." (13) Missouri's new approach gives a person more control over determining who can take charge of her burial and funeral arrangements. Yet a comparison to similar state statutes and relevant case law demonstrates that the Missouri legislature can and should do more to ensure that a decedent's wishes are met. The legislature should amend the law to (1) broaden the kinds of legal documents that are valid to dictate the means and agent for a decedent's final disposition and (2) instruct state courts to consider the decedent's actual personal relationships when determining in whom the right of sepulcher vests, if the decedent had not made burial arrangements ahead of time.

  2. LEGAL BACKGROUND

    1. The Historical Right of Sepulcher

      To understand the right of sepulcher in Missouri, it is important to know the historical basis of that right. The justifications for giving someone a right to control the disposition of her own remains stem from common law. Historically, under English and American common law, a person could not determine how her body would be disposed because no one had property rights in a dead body. (14) Eventually, the law created a "quasi-property right in a dead body," which gave the decedent's next of kin the right to receive the decedent's body intact and to choose "the time, place, and manner of burial." (15) This right developed through state statutes requiring relatives to dispose of a body and through courts enforcing damages against anyone who harmed a dead body. (16)

      The right to receive a body and arrange for its burial is still enforced today. This right is so important to American jurisprudence that the United States Court of Appeals for the Ninth Circuit deemed it part of "our national common law." (17) The basis for that right, however, is split into two camps: some states follow the quasi-property theory, while others treat the human body not as property but "'as the subject of privacy rights.'" (18) American jurisdictions that follow the quasi-property theory note that a decedent's next of kin do not actually own the body under "a traditional property right ... but merely hold the right [of sepulcher] as a sacred trust for the benefit of all family and friends who have an interest." (19) Missouri follows the quasi-property rule. (20) Yet Missouri, as well as other quasi-property jurisdictions, has recognized that a decedent's oral or written wishes as to the disposition of her body "are entitled to consideration and substantial weight, in the light of all facts attending their utterance or publication." (21) Whether Missouri courts will actually give effect to any kind of written or oral statement, however, has yet to be addressed.

    2. Factors Leading to Different Legislative Approaches to the Right of Sepulcher

      While the right of sepulcher remains rooted in the common law, changes in the demographics of the U.S. population have forced states to develop laws that emphasize a person's ability to dictate who will arrange her funeral and burial. Perhaps most influential is the steady increase of unmarried couples cohabitating, whether same or opposite sex. According to the 2009 Current Population Survey from the U.S. Census Bureau, out of 67.5 million households containing opposite sex couples, 6.7 million unmarried couples reported living together. (22) In 2008, the American Community Survey project from the U.S. Census Bureau estimated that out of 61.9 million couple households, approximately 564,000 were same-sex partner homes. (23) Additionally, a high divorce rate, coupled with longer lifespans due to improved health care, have resulted in more people getting remarried after a divorce or spouse's death. (24)

      As for same-sex couples, ten states and the District of Columbia currently recognize their relationships and have granted them some of the same rights and privileges that married couples possess. (25) In other states, particularly those that have banned gay marriage, (26) cohabitating couples and their attorneys have resorted to legal documents to create legally binding appointments of their partners that are enforceable against disputing survivors. The possibility of clashes among same-sex partners, parents, spouses, ex-spouses, or children from current and former marriages "'suggest[s] there is every likelihood that the number of burial conflicts will increase.'" (27)

    3. State Legislation

      In the same way that states have taken diverse approaches to the rights of same-sex couples, states have reacted differently to the problem of conflicting interests in the right of sepulcher. Some states, such as Alabama, Florida, and North Dakota, still rely on the common law approach: unless the decedent provides a testamentary disposition, the right of sepulcher belongs to the spouse and then next of kin. (28) others have expanded the definition of one's "next of kin" specifically to include same-sex partners. (29) Yet perhaps the most common approach state legislatures have used--and the one that most resembles Missouri's recently amended law--is to enact statutes that allow for someone to appoint an agent for burial or provide directions in a written document. This Section emphasizes comparable state statutes within the United States Court of Appeals for the Eighth Circuit and the Midwest but examines legislation from other states as well.

      Several states that allow a person to appoint an agent for final disposition of her remains explicitly give priority to those agents. In Illinois, first priority is given to someone designated in a written instrument that complies with the Disposition of Remains Act, followed by the executor or personal representative of a decedent's estate acting pursuant to directions in the will. (30) Iowa and Minnesota similarly give preference to those named in a declaration from the decedent. (31) Under the Nebraska Funeral Directing and Embalming Practice Act, the right to control the disposition of a deceased person's body is given primarily to those the decedent indicated in her will (regardless of the will's validity) or a pre-need funeral contract. (32) otherwise, the decedent can give someone the right of sepulcher in a signed and sworn affidavit, though that person will not be deemed an attorney-in-fact. (33) Using approaches most similar to Missouri's, California and Kansas first look to a power of attorney for health care to determine the right and duty of disposition. (34)

      Some states, however, place limitations on who can be made an agent. In Iowa, for instance, unless the agent is related to the decedent within the third degree of consanguinity, (35) she cannot be a funeral director, attorney, or an employee, agent, or owner of a funeral business, cremation business, cemetery, nursing home, assisted living program facility, adult day services program, or licensed hospice program. (36) This is presumably to prevent the risk of undue influence or fraud against the elderly and sick. Also, in Iowa, a legal separation, divorce, or annulment will automatically revoke designation of a spouse as an agent, unless the decedent expressly stated otherwise. (37) A designated person will forfeit her right to control a decedent's final disposition if she fails to exercise her right within twenty-four hours after learning of the decedent's death or forty hours after the death, whichever occurs first. (38) In contrast, Minnesota explicitly excludes instructions in a durable or nondurable power of attorney that terminates upon the principal's death. (39) Additionally, Minnesota lets a district court remove the right to control and the duty of disposition from any "estranged" relatives, defined as those "having a relationship [with the decedent] characterized by mutual enmity, hostility, or...

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