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Burial disputes are gut wrenching affairs, and in my opinion (based on personal experience), Florida law remains woefully ill-equipped to handle them.

The latest burial dispute to hit our appellate courts started on the night of February 12, 2010, when a Bentley driven by Palm Beach polo tycoon John B. Goodman sped through a stop sign striking the car driven by 23-year old Scott Wilson. Wilson’s car ended up in a canal, where he drowned as Goodman drove away. In 2012 a jury found Goodman guilty of DUI manslaughter and failure to render aid in the crash that cost Wilson his life, however his conviction and 16-year prison sentence were thrown out because of jury misconduct. A second trial has yet to take place. By the way, Goodman’s legal troubles haven’t been limited to his criminal case, as I reported here in connection with a 3d DCA ruling involving his $300 million family trust and Goodman’s related adoption of his 42-year-old girlfriend.

After Scott Wilson’s death his divorced parents agreed to cremate his remains, but couldn’t agree on where his ashes should be buried. Eventually, the dispute ended up in court. In an apparent attempt to break the deadlock over their son’s ashes, Wilson’s father proposed a Solomaic solution: split the ashes 50/50 between himself and Wilson’s mother, Lili Wilson. As reported here, Ms. Wilson objected to this approach on religious grounds:

Lili Wilson has maintained that her Catholic faith is driving her belief that the remains of her 23-year-old son Scott, who was killed in 2010 when his car collided with one driven by Wellington polo mogul John Goodman, should not be divided between her and her ex-husband. Instead, she claims, the ashes should remain together and buried in Palm Beach County.

Are deceased son’s ashes “property”? NO

Unfortunately for Wilson’s father, his split-the-baby solution depended on the following legal fiction: his son’s ashes were “property” of the probate estate, thus susceptible to partition like any other item of joint property. In 2005 the 4th DCA rejected a similar property-based argument in Cohen v. Guardianship of Cohen, a case I wrote about here involving non-cremated bodily remains, and in 2007 the 3d DCA came to a similar conclusion in City of Key West v. Knowles, a case I wrote about here.

Case Study

Wilson v. Wilson, — So.3d —-, 2014 WL 2101226 (Fla. 4th DCA May 21, 2014)

Not surprisingly, the result was the same this time around: a decedent’s ashes are NOT property subject to probate administration. Here’s how the 4th DCA explained its ruling:

Our probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” § 731.201(32), Fla. Stat. (2012). That definition has existed since 1975. Yet, as our supreme court has articulated, “[a]ll authorities generally agree that the next of kin have no property right in the remains of a decedent.” State v. Powell, 497 So.2d 1188, 1191 (Fla.1986) (emphasis added). The supreme court clarified its position in Kirksey v. Jernigan “to be consistent with the majority view that the right [to the remains] is limited to ‘possession of the body … for the purpose of burial, sepulture or other lawful disposition….’ “ Id. at 1191–92 (citing Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950)).

It reiterated its position again in 2001 in Crocker v. Pleasant, 778 So.2d 978, 988 (Fla.2001), acknowledging that “there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition.” But a claim of entitlement is not a property right, nor does it make the remains “property.”

Ashes are the decedent’s remains. Common law, our supreme court, and this Court have always held that a decedent’s remains are not property. See id.; see also Cohen v. Guardianship of Cohen, 896 So.2d 950, 954 (Fla. 4th DCA 2005) (“a dead body is not properly viewable as property or assets”).

For those of you with a weakness for all things historical (like me!), you’ll appreciate the 4th DCA’s explanation of how 18th Century English jurisprudence is largely responsible for how this 21st Century Florida case was decided.

We are presented with an issue of first impression, for no Florida court has answered the precise issue posed. And so, we start by traveling back in history to reflect on how deceased bodies and ashes have been viewed over time. In 1753, Sir William Blackstone commented:

 Pews in the church are somewhat of the same nature, which may descend by custom immemorial (without any ecclesiastical concurrence) from the ancestor to the heir. But though the heir has a property in the monuments and escutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.

 Sir William Blackstone, Commentaries on the Laws of England in Four Books 429 (Philadelphia, J.B. Lippencott Co. 1893), available at (emphasis added).

. . .

The historical basis for this thinking was derived in part from the English view that “the secular tribunals would protect the monument, the winding-sheet, the grave-clothes, even down to the ribbon (now extant) which tied the queue; but the Church would guard the skull and bones.” In re Widening of Beekman Street, 4 Bradf. 503, 522 app. (1856) (historical note on the law of burial by the Honorable Samuel B. Ruggles, Referee).

So what now?

In the absence of agreement by Wilson’s parents or a legal mechanism for resolving their deadlock (there isn’t one), the trial judge is left to his own devices to figure this mess out. In this case, it looks like the trial judge will appoint a neutral third party as “curator” and that person’s job will be to decide where Wilson’s ashes are buried (this is effectively the same approach taken in the Anna Nicole Smith burial-dispute case). Bottom line: a stranger who never met Wilson will decide his final resting place. As noted by the 4th DCA:

The court gave [Wilson’s parents] 30 days “to carry out their duties and responsibilities to finally dispose of [their son’s] remains….” If they were unable to reach agreement, the court indicated that it might appoint a curator or other suitable person to carry out the task.

By the way, this is exactly what Wilson’s father wanted to avoid, as reported here:

William Wilson’s lawyer, Joy Bartmon, said she was disappointed with the decision. “This opinion does not guide the trial court in the determination to be made,” she said in an email. “Instead, what will occur when the decision as to the ashes goes back to the trial court, is what I wanted to avoid. The final resting place for this young man may be left to the discretion of an administrator who never knew him.”

We need a legislative fix

At their core burial disputes are moral dilemmas — not legal disputes — which means “we” (as in all of us acting through our elected officials) need to develop mechanisms for resolving them that reflect our civic values. Presently, our trial judges are doing the best they can to fill the legislative vacuum. As noted by the 4th DCA appellate panel, and reported here, there’s really no current mechanism under Florida law for resolving the type of burial dispute represented by this case.

In addition to the emotional issues surrounding the case, all three judges [on the 4th DCA appellate panel] also seemed to struggle with whether the question before them is really a legal issue. “Isn’t it something the Legislature should be doing?” [Judge] Levine asked. [Judge] Warner pointed out that there isn’t any mechanism in the law to settle the dispute.

We owe it to the families involved in burial disputes to construct a viable legal mechanism for resolving them. How do we do that? Look at what our sister states are doing and cherry pick their best practices and procedures. For an excellent article surveying burial statutes nationwide and suggesting a form of uniform law, you’ll want to read Uniform Acts-Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law. What I find particularly helpful about this article is that it provides a detailed, well-researched and thoughtful proposed statute from beginning to end. Now all we need is someone in Tallahassee to take notice and make it happen!