The Law Firm of Peter L. Klenk and Associates Call Klenk Law LinkedIn The Law Firm of Peter L. Klenk and Associates

Posted on Thursday, February 5th, 2015 by Adam Reid

Often the most sensitive question when estate planning – where and how do you want your remains disposed? I realize this appears morbid, but it is a necessary consideration. In New Jersey, the State has established default rules when a Will is silent on the issue, or if the testator fails to designate a specific person with authority over the decision. Similar to intestacy, these rules are utilitarian in nature. As with any one-size fits all rule, there will likely be family conflict and litigation. A recent case, argued up to the New Jersey Supreme Court, highlights the importance of considering the remains question before death.

A brief chronological background of the facts will better illustrate the point:

  • LM has 2 children with ex-wife Dorothy
  • LM marries JM
  • LM & JM have 4 children
  • LM appoints 2 children from 1st marriage as co-executors in Will, no info concerning burial
  • LM dies
  • Executors bury LM in Dorothy’s family plot, against JM’s wishes
  • JM argues burial was proper in her family plot
  • 3 year litigation ensues

In New Jersey, who has the authority to decide burial arrangements: the executors or the surviving spouse? Two provisions from the New Jersey Cemetery Act of 2003 were relevant to this case. The first addresses the burial itself, the default decision maker when no one is named in the Will. The second deals with disinterment i.e. who has the authority over removing a body already in the ground.

The primary point the Court makes is you always have the authority to determine your representative and arrangements. Planning ahead is the simplest way of achieving your goals. But, if your wishes are unclear or absent the result can be unexpected.
In New Jersey, absent contrary written declaration in the Will, the surviving spouse has authority over burial decisions. Typically, that is the end of the inquiry. However, when a spouse is not named executor, and the children disagree resolution is not so simple. This case is a prime example of when the simple rule above fails.

The Court goes on to discuss the disinternment clause of the New Jersey Cemetery Act. The Act specifically includes a strong preference against disinternment. In the case of disinterment the surviving spouse does not have sole discretion. In fact, where disinternment is concerned, the wife’s authority is shared equally with all adult children. In our case, at the date of the hearing, LM had long been buried. Therefore, JM’s insistence on disinternment was outweighed by the wishes of LM’s surviving adult children. The Court held that LM would remain buried next to his ex-wife, against the wishes of his widowed spouse. The widow who had a right to decide her husband’s burial in the first place!

How did the court arrive here? A rule of statutory interpretation states that two provisions should be considered together when they relate to the same person or thing, or have the same purpose or object. Using this principle based on harmony, the Court found that even though JM should have initially had the authority to control the disposition, the preference against disinternment outweighed the concerns over initial authority.

So, even if LM understood the default rule and believed his wife would control the disposition of remains, his plan failed due to the intricacies of the New Jersey Cemetery Act. This lack of preparation cost his executors three years and real money fighting this issue in court. All of which could have easily been avoided with the advice of an experienced estate planner.

If you need assistance with probate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

Wills, Trusts and Estates, It’s All We Do!

« Back

powered by BirdEye