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SPRING 2007 • Vol. XLVI
- How the Law Protects the Sanctity of the Grave
- TELECOMMUTING: A Possible Alternative for Employers
- The Firm Highlights
- The Firm Departments Work Together

How the Law Protects the Sanctity of the Grave
“And Curst Be He That Moves My Bones” - Shakespeare's Epitaph

by Richard A. Blumberg and Lisa A. Perillo

One of the many things we take pride in at The Firm is our ability to handle a wide variety of cases. The litigation department perhaps has the greatest variety of all. As litigators, we see our share of contract, business, tort, real estate, discrimination, environmental and personal injury lawsuits. These cases, whether complex or straight forward, are almost never without an element of human drama to make them all the more interesting. This firm recently handled a truly unique case, which demonstrates how the law can reach even into the grave – but only under circumstances where to do so would be right.

As featured in the New York Law Journal and Long Island Business News, we represented a mother pitted against her son's widow. Our client's son died of an unexpected heart attack at the age of forty-seven. He was buried in a Long Island cemetery. Almost one year after his death and burial, his widow, to whom he had been married for less than two years, sought court permission to exhume his remains for purposes of cremation. In seeking disinterment, the widow alleged that she and her late husband discussed his desire to be cremated and that she wanted to follow his wishes. The widow claimed that the reason she did not initially seek to have her husband cremated was because she was emotionally distraught at the time of his death, and as such, she was in no condition to argue with her husband's family who wanted him to be buried.

Our client argued that her son had never wanted to be cremated, but rather had wanted to be buried in the same cemetery where his father was buried. She further argued that the only reason her son's widow was seeking disinterment at such a late date was "to get the last word" in an ongoing dispute between the two involving insurance proceeds resulting from the decedent’s death and the interests of competing family businesses.

After extensively researching the case law and statutory history of exhumation in the state of New York, we found an obscure statute governing cemeteries and disinterment. According to the law, even if a spouse wants the deceased to be disinterred after the burial, (whether for purposes of cremation, reburial elsewhere, or otherwise) if another close family member, such as a parent, opposes the exhumation, it will not be allowed unless the person seeking disinterment has a good and substantial reason for disturbing the dead. This is because, as the courts have long recognized, “The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose,” and “Good and substantial reasons must be shown before disinterment is to be sanctioned... the courts, exercising a benevolent discretion,” will be sensitive “to all those promptings and emotions that men and women hold for sacred in the disposition of their dead.”

The Court applied these standards to our case and ruled that the widow failed to meet her burden of proof, and denied disinterment. In reaching its decision, the Court looked to the decedent's last will and testament, which did not make mention of a wish to be cremated. Generally, “a decedent’s wishes concerning his or her final resting place are of significant concern to the courts in determining whether disinterment should occur,” prevailing even over the wishes of a surviving spouse. Although acknowledging that, as the widow alleged, cremation may have been discussed, the Court ultimately relied more heavily on the fact that the decedent’s will, executed during their marriage, “was devoid of any reference to being cremated.”

The Court was also clearly influenced by the state’s long-standing public policy that, "The quiet of the grave, the repose of the dead, are not lightly to be disturbed." Here presented was not the issue of how and where to lay the decedent’s body to rest, but of taking it up and disturbing it from where it had already lain for almost a full year. Nearly one hundred years ago a court described the sanctity of the grave in stating:

The law throws around the bodies of deceased human beings a protection even in their graves. The right of Christian sepulture includes the right to have one's remains respected in his or her last resting place. Many circumstances arise from time to time necessitating a disturbance of the repose of the dead, but it must be some controlling public reason or superior private right which should induce the court to permit that to be done which from time immemorial has been considered abstractly as a work of desecration.

Sadly, it is all too common for family members to litigate over money issues. That such conflicts arise from the death of a family member is also common. It is rare, however, and even sadder, that family members petition the courts for exhumation and disinterment of the remains of loved ones already laid to rest, and litigate over the cremation or changing the location of where the loved one is buried, especially where such litigation is accompanied by a money-issue conflict or commenced out of spite.

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