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Is your Loved One’s Ashes Considered “Property,” Subject to Division under the Probate Code?

Is your Loved One’s Ashes Considered “Property,” Subject to Division under the Probate Code?

The death of a child is unimaginable for a parent.  Any loving parent would try their best to hold onto every belonging to keep their loved one present in our mind and heart.  In the recent case of Wilson v. Wilson, the tragic death of a son who died without a will or burial instructions, unfortunately, pitted a grieving mother and father against each other over the division of their son’s ashes.

The son died in a car accident, without a will or burial instructions.  The mother and father, who were divorced, were appointed as co-personal representatives of their son’s estate.  The parents agreed on cremating their son’s remains, but they could not agree on a final resting place for his ashes.  The father wanted to split the ashes evenly with his ex-wife, but she opposed that for religious reasons.  The father then filed a request with the probate court to split the ashes in half so that he and the mother could make an independent decision about the final resting place of their son.  The mother objected.

During an evidentiary hearing the father argued that pursuant to Section 731.201(32), his son’s ashes could be considered “property,” subject to division according to the laws of intestacy (The laws of intestacy applied because the son did not have a will).  The trial court, however, found that the ashes were not property, and fall outside of the probate administration.  Therefore, the ashes were not subject to division.  The trial court gave the father and mother 30 days to “carry out their duties and responsibilities to finally dispose of” their son’s remains.  If they were unable to reach an agreement, the trial court stated that it would appoint someone, such as a curator, to carry out the task.  The father appealed the trial court’s order.

The appellate court agreed with the trial court that the son’s ashes were not property subject to probate.  The appellate court focused on the historical treatment of ashes, as well as similar laws from other states.  After careful consideration, the appellate court found that “given the sensitive nature of the subject matter, and the fact that, historically, cremated remains have been treated the same as the body, neither constituting ‘property,’ we decline to craft a policy at odds with our history and precedent.”   In other words, the Court chose not to legislate from the bench and deem the ashes property simply because of the sensitive nature of the situation.

In conclusion, this case presents a sad example of what can happen when death occurs without proper estate planning.  Hopefully, these parents were able to reach an amicable resolution to this matter and their son can finally rest in peace.

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