Cremation or Burial – Autopsy or Not – Who Decides?

Robert Harper, of the NY Trusts & Estates Litigation blog, recently wrote about the law as it relates to the right to decide how human remains are disposed of in New York. The article quoted NY Public Health Law § 4201(2)(a), which identifies an order of priority of who has the right to direct how a deceased person’s remains are disposed of.  An individual may execute a document specifying whom she wishes to decide issues related to how to dispose of her body, but if no such written instrument exists, then the individuals listed in § 4201 determine the order of priority.

Other important issues exist regarding how a loved one’s body is treated after death as well regarding whether a body is autopsied or cremated.

Cremation

With regard to the decision whether bury or cremate an individual’s body, there is an order of priority for how that decision is made, as noted above, and there is an exception to the rule.

1.      If the decedent left a document specifying how her remains should be disposed of (i.e. burial versus cremation), then that document controls. NY Public Health Law § 4201(2)(a)

2.      If no such document existed, but the decedent’s actions or expressed wishes dictated how her body should be handled after death, then those wishes control, even over the objections of family members. Application of Hillard, 91 N.Y.S. 2d 547, 549 (N.Y. Sup. Ct. 1944).

3.      If the decedent had no discernable wishes as to how her body should be disposed of, then the statutory order of priority determines which relatives decide how the decedent’s body is disposed of. NY Public Health Law § 4201(2)(a)

However, there is an exception to the order of priority listed in the § 4201. For instance, a surviving spouse and children are high in the order of priority to decide how a body is disposed of us a surviving spouse, but where there is evidence that the decedent was estranged from his or her spouse or children, the courts look beyond those individuals to decide how a decedent’s body should be disposed of. In re Solomon, 766 N.Y.S. 2d 294, 295 (N.Y. Sup. Ct. 2003).

In one relatively recent Nassau County Supreme Court case, a deceased person’s estranged wife and daughter were planning to have him cremated, and his body was already in the custody of a crematorium. Based on testimony that the decedent led a somewhat observant Jewish life, and based on the expert testimony of Rabbi Moshe Weinberger that orthodox Jews consider cremation unacceptable, the court held that evidence of the decedent’s desire to have a traditional Jewish burial overcame the wishes of the surviving spouse and daughter, the provisions of § 4201 notwithstanding. Id.

The Performance of an Autopsy

NY Public Health Law § 4210 gives the medical examiner the power or right to perform an autopsies on, “… the bodies of persons dying from… casualty, … suddenly when in apparent health, … or in any suspicious or unusual manner.” But § 4210-c(1) states that absent some compelling public policy need, “no dissection or autopsy shall be performed over the objection of a surviving relative … that such procedure is contrary to the religious belief of the decedent, or, if there is reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.”

Absent one of the circumstances specified in § 4210, the medical examiner may not do an autopsy on a body without notice to the family of the deceased. Dick v. City of New York, 2002 WL 31844745, *3 (N.Y. Sup. Ct. Oct. 30, 2002). However, “the burden is upon a decedent’s next of kin to convey a religious objection to the medical examiner’s office” were the death occurred in some unusual manner, or upon notice, absent some unusual or suspicious circumstances surrounding the death.” Id.

If an autopsy is performed despite notice that there are religious objections, the hospital may be held liable for civil damages. In Rotholtz v. City of New York, 582 N.Y.S. 2d 366, 367 (N.Y. Sup. Ct. 1992), the decedent’s brother informed a doctor at Lenox Hill Hospital that an autopsy should not be performed on his sister, but the hospital failed to convey this message when it turned the body over to the medical examiner, who performed an autopsy. The court there held that the hospital was responsible because when it failed to inform the medical examiner of the family’s religious objection to the performance of an autopsy, it thereby “caused or procured” the unauthorized autopsy. Id. at 670.

The Appellate Division reinstated a jury’s decision to award a surviving family $75,000 compensatory damages and $1,350,000 in punitive damages when an employee at Riverside Chapels caused the medical examiner’s office to perform an autopsy even though the family had told Riverside employees that they were orthodox Jews and that no autopsy should be performed. Liberman v. Riverside Memorial Chapel, Inc., 650 N.Y.S. 2d 194, 197-99 (N.Y. App. Div. 1996).

Conclusion

The safest way to ensure that one’s wishes regarding how his or her remains are disposed of after death will be honored is by executing a Will which makes those wishes clear. The named Executor will be able to ensure that the appropriate people know of your wishes. And as for family members, even though it is a very difficult time after the loss of a loved one, miscommunications can be avoided more easily if everyone they speak to at the hospital, the nursing home, and the medical examiner’s office (if they are involved) are made aware of your wishes with regard to how the deceased’s body should be treated.

And of course, if you need assistance with any estate planning documents like Living Wills, Powers of Attorney, Wills, or Trusts, our office has extensive experience with these documents. Feel free to contact our office at any time for assistance.

Picture courtesy of the Hoven Funeral Home. 

Update 8/26/09: Indiana Creates Funeral Planning Directive