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Cremation Approved Despite Objection From Next of Kin

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John Cottingham tried to make it clear that he wanted to be cremated. Even his will directed his family and friends to see to that wish. His mother, however, disapproved—and it took a court proceeding to overturn her decision to have him buried.

Elder Law Issues has previously reported on how difficult it can be to ensure that your wishes for burial or cremation are carried out. In April, 2000, we described what happened in Wisconsin when James Wrosch died. His mother and sister insisted that his body be buried, rather than cremated, despite his clear instructions to the contrary. Mr. Wrosch’s family had even signed forms agreeing to the cremation before he died, but they were permitted to renege after his death. See Family Members Permitted to Ignore Decedent’s Burial Plans, April 24, 2000.

John Cottingham’s circumstances were strikingly similar. In 1996 he signed a will which included this provision: “It is my wish and I direct that my body shall be cremated after my death.” When he died three years later, however, his mother objected to the arrangements, intervened and directed that his body be buried.

Mr. Cottingham’s friend James McKee secured appointment in the Alabama probate court as personal representative of his estate. Four months after the burial Mr. McKee asked the court to exhume the body and arrange for the cremation Mr. Cottingham had originally directed.

Mr. Cottingham’s mother objected to the exhumation and cremation. She argued that the law permits next of kin to make burial arrangements, regardless of the decedent’s wishes. In support of that argument, she filed affidavits from three Alabama funeral directors indicating that funeral industry practice is to honor the instructions of the next of kin rather than the wishes of the decedent.

Mr. McKee filed his own affidavits—statements from four of Mr. Cottingham’s friends indicating that he had told them he preferred cremation. After a hearing the court decided that Mr. Cottingham’s wishes should be followed, and approved the delayed cremation. Mrs. Cottingham appealed.

The Alabama Supreme Court partially agreed with Mrs. Cottingham. The general rule, said the justices, is that the next of kin controls the disposition of the decedent’s body. When the wishes of the decedent are clear, however, those wishes are entitled to “respectful consideration” and should be “carried out as far as possible.” The Court upheld Mr. McKee’s order for exhumation and cremation. Cottingham v. McKee, September 7, 2001.

As Mr. Cottingham’s burial and exhumation make clear, the laws in different states can take different approaches to the same problem. Advance arrangements and clear instructions can help ensure that your wishes are carried out, but may not guarantee that they are. Depending on state law, that may not be enough.

We have previously explained that Arizona law is at least somewhat clearer on the issue of the burial wishes of decedents. Those wishes are to be carried out unless they create an “economic or emotional hardship.” The meaning of  “hardship” is still uncertain in Arizona, however.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.