Family Feud: Avoiding Liability In Disputes Over The Disposition Of Remains

Death can be a unifying event, bringing together friends and relatives of the deceased. Yet when there is a dispute among the family about how to dispose of the remains, cemeteries must act carefully to avoid liability.

Since 2005, disputes about the disposition of remains have been governed by New York Public Health Law ("PHL") § 4201.  This provision lists who has priority to make decisions about the disposition of remains, and may shield cemeteries from liability. PHL § 4201(7) states a cemetery or crematory operator shall not be liable "for actions taken reasonably and in good faith" to (1) "carry out the written directions of a decedent as stated in a will or in a written instrument," or (2) "carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains." Notably, the latter clause requires a written statement from the individual that he or she was either  designated in a writing, such as the will, or that there is no written designation, but the person has priority under PHL § 4201(2).  Absent a written designation, PHL § 4201(2) gives priority to a surviving spouse or domestic partner, followed by an adult child, then a parent, etc.

In Mark v. Brown, 82 A.D.3d 133 (2d Dep't 2011), the written representation was critical. In Brown, a cemetery was sued for negligent infliction of emotional distress after cremating the decedent's remains.  The cemetery had received a signed authorization from the widow, as named in the death certificate, but plaintiff claimed she was the surviving spouse, and the authorizing "widow" was decedent's wife from an earlier marriage. Plaintiff also claimed decedent was a practicing Catholic that owned a burial plot. The Appellate Division, Second Department held that PHL § 4201 shielded the cemetery from liability where it acted in good faith based upon a written authorization and the marriage certificate. Thus, the Court affirmed the grant of summary judgment in favor of the cemetery.

If, unlike Brown, the dispute is known to the cemetery in advance, the law still provides protection, stating "no person providing services relating to the disposition of the remains of a decedent shall be held liable for refusal to provide such services, when control of the disposition of such remains is contested." Such protection continues pending a court order or notice signed by all parties and/or their legal representatives resolving the dispute. 


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