Cremation Approved Despite Objection From Next of Kin


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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