Who has the legal right to a body after death?
Categories: NewsFiona Mainwaring, Head of Wills and Probate at ORJ, explains the legal process when disputes arise over what happens to a body after a funeral
Disputes after a family death are common – but not always for the reasons you might expect.
A recent study found 40% of deaths lead to some level of disagreement amongst family members, while separate research uncovered three in four people are likely to experience a will, inheritance, or probate dispute in their lifetime.
Unsurprisingly, money is usually at the heart of probate disputes. There are all sorts of reasons why financial disagreements might be on the rise, including larger-than-ever sums at stake as baby boomers pass on property, increasing reliance on inheritance to get on the property ladder and the rise in blended families, which can add complexity.
But in my experience, it’s not always money. It might surprise you to read that a fair number of disagreements – 20% of all disputes according to one report – revolve around the deceased’s body and how it should be disposed of.
Who has responsibility for the body?
There are significant decisions to be made when someone dies, such as whether a body should be cremated or buried, and where the final resting place will be.
So, who does have the ultimate say over what happens to a body? Is it the next of kin? The person who paid for the funeral? The coroner, perhaps?
The starting point is nobody owns a body as it is not seen as property. This dates way back to 1614 and cases of people digging up graves to steal burial cloths. Remains can’t be gifted, bought or sold, though they can be donated to science research if that was the stated wish of the deceased.
In unusual cases, a hospital can detain a body if it may be infectious, or a coroner can take possession of it to determine the cause of death.
Otherwise, if there is a will, the person who takes temporary possession of a body after the funeral with the ‘duty to dispose’ is the named executor. This might well be the next of kin, but could equally be a non-family member.
Of course, an executor will often be happy to consult with the next of kin and follow their requests with regards to the body, but this is not always the case. The deceased may have expressed their wishes in their will but, while this can be helpful, it is not legally binding.
If there is no will, the body is passed according to the rules of intestacy, starting with a spouse or civil partner, then onto children, parents, siblings are so on.
In the case of an unmarried couple where there is no will, the surviving partner has no automatic right to the body. This can open a real can of worms if other family members disapproved of the surviving partner for whatever reason.
If no relatives can be traced or no-one wants to take the body, the responsibility falls on the householder in whose house the person died. The last resort is the local authority.
What happens when disputes arise?
Where there are arguments over remains, it tends to be when either a spouse or child has not been named as the executor. The spouse or child might have long-held ideas over where their loved one’s remains should rest and feel they are being robbed of the opportunity.
Ultimately, the High Court can step in and rule over who should receive the body – but this is expensive and time-consuming. An injunction can be put in place to delay cremation or burial until a decision is made. There was one example where the body remained with the coroner for seven long months before a court ruling was made.
Mediation is highly recommended to try and find a compromise solution before an application to the court is made. Having an independent person involved in the discussions can make a huge difference.
If you are facing a dispute over a loved one’s remains – or you think there is potential for a dispute to arise – speak to our experienced probate team today for guidance.