Disputes Over the Remains of a Deceased Person: How to Avoid Them
One of the most unique cases we worked on at Mediation Path Silicon Valley, LLC involved a dispute over the remains of a deceased family member. We thought we would share with you what the disagreements between the parties were and how to avoid them.
1). Our Case about the disposition of the remains of a deceased loved one
Under California law, the agent named in the advance health care directive has the authority to direct the disposition of the remains of a deceased person. In this document, a person can specify what type of disposition of their body they desire.
When no direction is given, disputes among well-intentioned family members can ensue as it did happen in the below-described case, we worked on.
1-1). The case
The decedent was not married, had no children, and had not left any written directions for the disposition of her remains.
The parties involved were:
1. The Executor of the decedent’s estate who had been a friend of the decedent for many years. The decedent had said to him that she wanted to be cremated and her ashes scattered in the Sierras. The Executor routinely hunted in the Sierras and was willing to scatter the ashes on his next hunting trip.;
2. Distant relatives who lived in Canada wanted the ashes transported to Canada to be interred in a family plot in Canada;
3. Distant relatives who lived in Los Angeles who wanted the ashes transported to them so they could keep them at home.
At the end of our mediation session, the various distant relatives and the executor of the decedent’s estate concurred that the body would be cremated. However, the disposition of the ashes ended in a stalemate. All of the parties agreed to submit the dispute to the Judge who was handling the probate case and let him make the final decision.
1-2) The Hearing
Although we warned all the participants in the mediation that when the Judge will be advised of the controversy before him and of the fact that they had agreed that he would make the final decision regarding the disposition of ashes he might be furious, the Executor filed the paperwork with the Court asking the Judge to resolve this dispute regarding the dispersion of the ashes.
As expected, the Judge was visibly upset by the decision imposed on him by the parties. His dislike for the topic was evident when he said, “Bury them, scatter them, I don’t care what you do with them. Send me an order and I’ll sign it. Next case.”
On the day of the hearing, only the Executor was present in court – the family members in Canada and Los Angeles chose not to attend the hearing. As the Executor was the only one in Court that day, an Order was submitted to the Judge for signature directing the Executor to scatter the ashes in the Sierras. The Judge signed the order and the Executor scattered the ashes in the Sierra on his next hunting trip.
2). Learn about your burial options early enough and pick one sooner than later
In our case, none of the parties wanted to be held responsible and/or carry the moral burden of making a” wrong”– meaning a disrespectful – decision regarding the scattering of the ashes of their loved one.
Had the deceased known the different options and picked the one she wanted all this drama could have been avoided.
Therefore, you will find below a synopsis of how the body of a deceased person may be disposed of in California.
2-1). Traditional burial - this is usually in a recognized cemetery. The body is embalmed and buried in a casket in the ground or entombed in a niche above the ground.
Burial uses chemicals to embalm bodies and a non-biodegradable coffin to store them;
The average cost of a plot is $5,545, a coffin $600 to $4,000; funeral $2,770 to $10,000.
2-2). Green burial - this is a relatively new concept. It involves no embalming. The body is wrapped in a sheet and buried.
This is a very eco-friendly option;
The average cost is $5,205 to $10,100.
2-3). Cremation - cremation is the process of reducing the body to its basic elements in the form of bone fragments through flame, heat, and vaporization usually at 1800 to 2000 degrees Fahrenheit for 2 hours or more.
Cremation is an energy-intense process that produces carbon dioxide emissions;
Cost - $1,300 to $2,300;
After cremation, the remains may be kept at home or can be scattered on private property or National or State parks. They also may also be scattered at sea - if over 500 yards of the coast – or buried in a cemetery.
2-4). Alkaline hydrolysis AKA “water cremation” or “aquamation”
This is an alternative to flame cremation. With aquamation, the body of the deceased is immersed for three to four hours in a mixture of water and a strong alkali, such as potassium hydroxide, in a pressurized metal cylinder and heated to around 150C. The process liquefies everything except for the bones, which are then dried in an oven and reduced to white dust, placed in an urn, and handed to relatives.
Aquamation has the same results (“ashes”) but at a fraction of the carbon footprint;
The average cost is around $ 1,395.
2-5). Cryonics - this is a technique intended to hopefully save lives and involves cooling a body to liquid nitrogen temperature where physical decay will stop in the hope that future scientific breakthroughs will someday revive the deceased and restore them to youth and good health.
According to the Cryonics Institute website the cost of cryonic suspension is around $28,000 - a one-time fee due at the time of death. Although the fee can be paid in cash, usually a member has a life insurance policy made that pays the amount to the Cryonic Institute at death to cover the cost.
Prices vary depending on if the suspended or a neuro (head-only) option is selected.
Many people wonder why a neuro or head-only suspension would be selected. The theory is that only the information contained in the brain is of any importance and a new body could be cloned or regenerated at some point in the future.
2-6). Composting - After 2027 composting will be an option in California. This is a process for natural organic reduction. This is a method in which the human remains naturally decompose over a 30 to 45 days period after being placed in a steel vessel and buried in wood chips, alfalfa, and other biodegradable material.
The nutrient-dense soil created by the process can be returned to families or donated to conservation land.
Cost - $5,000 to $7,000
To conclude, some controversies don’t end just because you are dead. Therefore, a well-drafted advance health care directive with clear instructions regarding the disposal of your remains after your passing is something you should seriously consider.
Bear in mind, that if like in our case you do not have a well-drafted advance health care directive because you did not have a trust and a will which led the distribution of the estate to be under the supervision of the probate court, mediation will be the last resort for your beneficiaries to agree on what to do with your remains before one or several of them decide to go to court and spend the money inherited from you in a court battle that could have been avoided.
If you find your family embroiled in a controversy over the disposition of the remains of a loved one, give us a call. We have experience in mediating all forms of family disputes.