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Family Members Permitted To Ignore Decedent’s Burial Plans

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APRIL 24, 2000 VOLUME 7, NUMBER 43

In 1997 James Wrosch planned his own funeral. He made arrangements for cremation and instructed the funeral home to deliver his ashes to his good friend James Cady. He even had his mother, brother and sister sign forms agreeing that Mr. Cady could take charge of his remains.

Two years later Mr. Wrosch died. Mr. Cady, as instructed, made the arrangements for cremation. Before the ashes had been released to Mr. Cady Mr. Wrosch’s family members changed their minds. They notified Mr. Cady and the funeral home that they were revoking their prior authorization, and instructed that the ashes be delivered to them.

The funeral home decided that it would not release Mr. Wrosch’s ashes to anyone without a court order, and so his family brought a lawsuit to determine whether they had any right to the remains. The judge decided that Mr. Cady’s authorization to act for his friend had become irrevocable once Mr. Wrosch had been cremated, and directed that the ashes be delivered to Mr. Cady. The family members appealed the ruling to Wisconsin’s Court of Appeals.

The appellate court reversed and directed that the ashes be delivered to the family. The judges pointed out that the next of kin have the right to decide on disposition of remains. The waivers signed by Mr. Wrosch’s family members did not change that result, since they only provided that the funeral home could rely on Mr. Cady’s direction. Family members still had the power to revoke their authorization for release of the ashes to Mr. Cady. Remick v. Cady, 4/13/2000.

Could Mr. Wrosch have done anything else to ensure that his wishes would be carried out? The Court of Appeals suggests that an agreement between Mr. Cady and family members, signed before Mr. Wrosch’s death, might have been enforceable. If family members objected, however, it does not appear that the Wisconsin court would permit a non-family member to control the disposition.

This result is similar to that reached by the Florida District Court of Appeal last year. In the Florida case the decedent’s husband insisted on controlling the funeral services and burial despite the fact that the couple had been legally separated for three years. The couple’s adult daughter brought suit against the funeral home after it followed her father’s instructions about burial arrangements, but the court determined that he had the authority to direct disposition of his wife’s remains. Andrews v. McGowan, 8/18/1999.

The results might have been different for both cases in Arizona. While next of kin have the right (and the duty) to make burial arrangements under Arizona law, they are required by statute to follow the decedent’s wishes when known–unless they impose an “economic or emotional hardship.” Arizona Revised Statutes §36-831.01. Of course, that would permit Mr. Wrosch’s family members to argue that release of his remains to his Mr. Cady would have been an “emotional hardship,” and that term has not yet been defined by Arizona courts.

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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.

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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.