Just this week in a case of first impression from Palm Beach County, the Fourth District Court of Appeal of Florida (“4th DCA”) in William A. Wilson, Jr. v. Lili M. Wilson, 2014 WL 2101226 (Fla. 4th DCA 2014) affirmed the probate court’s order which determined that the son’s ashes were not considered property as defined by Section 731.201(32), Fla. Stat., and therefore not subject to partition. After a tragic automobile accident killed their twenty-three year old son, leaving no will and no written or verbal instructions for disposition of his body, the parents (who were also his personal representatives and the sole beneficiaries of his estate) agreed to have his body cremated. However, the father and mother were unable to agree upon the location in which the ashes were to be buried; one favored Florida while the other Georgia.
During probate, the father petitioned the court to declare his son’s ashes “property” under the probate code, thereby allowing partition and each parent would be able to dispose of half of the ashes as they desired. The mother opposed this for religious reasons. After an evidentiary hearing, the probate court denied the father’s petition, and gave the parents thirty days to carry out their duties as co-personal representatives. If at the end of thirty days they could not agree, a curator might be appointed by the court to carry out the task. On appeal, the father argued that ashes fall within the plain meaning of “property” as defined by Section 731.201(32), while the mother responded that ashes are not property and contended that the next of kin only have alimited possessory right to the remains for purposes of disposition.
As this case was an issue of first impression, the 4th DCA traveled back in history to determine how ashes had been viewed over time. After viewing commentaries and precedents from 1753 to the present day, the 4th DCA commented that the probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” Id. Further, they observed that the Florida Supreme Court has articulated that the next of kin do not have any property rights in the remains of a decedent, and their rights are limited to possession of the body for purposes of burial or other lawful disposition. Moreover, the Florida Supreme Court has held that although the next of kin have a claim of entitlement to the remains of a decedent, this is not a property right and does not make the remains “property.”
Relying on Florida precedent, the 4th DCA declared that the decedent’s ashes were not “property.” Given the sensitive nature of the subject matter, and the fact that cremated remains have historically been treated the same as the human body with neither constituting “property”, they declared that the matter was best left to the legislature to address this policy issue and affirmed the probate court’s ruling.
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