CORPSE

CORPSE

The physical remains of an expired human being prior to complete decomposition.

Property and Possession Rights
In the ordinary use of the term, a property
right does not exist in a corpse. For the purpose
of burial, however, the corpse of a human being
is considered to be property or quasi-property,
the rights to which are held by the surviving
spouse or next of kin. This right cannot be con-
veyed and does not exist while the decedent is
living. Following burial, the body is considered
part of the ground in which it is placed. Articles
of PERSONAL PROPERTY that have been buried
with the body, such as jewelry, may be taken by
their rightful owner as determined by tradi-
tional property rules or laws relating to DESCENT
AND DISTRIBUTION or wills, as they are material
objects independent of the body.
A corpse may not be retained by an under-
taker as security for unpaid funeral expenses,
particularly if a body was kept without authori-
zation and payment was demanded as a condi-
tion precedent to its release.
At times, the need to perform an autopsy or
postmortem examination gives the local CORO-
NER a superior right to possess the corpse until
such an examination is performed. The general
rule is that such examinations should be per-
formed with discretion and not routinely. Some
state statutes regulate the times when an autopsy
may be performed, which may require the pro-
curement of a court order and written permis-
sion of a designated person, usually the one with
property rights in the corpse.
Burial Rights
The right to a decent burial has long been
recognized as COMMON LAW, but no universal
rule exists as to whom the right of burial is
granted. Generally, unless otherwise provided
before death by the deceased, the right will go to
the surviving spouse; if there is none, it will go
to the next of kin. When a controversy arises
concerning the right of burial, each case will be
considered on its own merits. The burial right
per se is a sacred trust for those who have an
interest in the remains.
Although the surviving spouse usually has
the principal right to custody of the remains and
to burial, special circumstances undermine this
right, such as the absence or neglect of the sur-
viving spouse or the separation of the parties at
the time of death.
When there is no surviving spouse, the next
of kin, in order of age, have the burial rights,
unless a friend or remote relative is found by the
court to have a superior right. The caretaker of
an elderly, childless decedent who lived with the
decedent for years prior to his or her death and
to whom the estate was bequeathed might have
a burial right that is superior to that of relatives.
In the case of the death of a child of divorced
parents, the paramount privilege of burial is
awarded to the parent who had custody.
The preference of the deceased concerning
the disposition of his or her body is a right that
should be strictly enforced. Some states confer
this right, considering a decedent’s wishes of
foremost importance.
In most instances, the courts will honor the
wishes of the decedent, even in the face of oppo-
sition by the surviving spouse or next of kin. If
for some reason a decedent’s wishes cannot be
carried out, direction should be sought by the
court. The court will decide how the body
should be disposed of and will most likely do so
according to the wishes of the surviving spouse
or next of kin, provided those wishes are reason-
able and not contrary to public policy.
When an individual wishes to direct the dis-
position of his or her remains, no formality is
required. Oral directions are considered to be
sufficient, and an individual’s last wish will ordi-
narily be the controlling factor, provided it is
within the limits of reason and decency.
Occasionally, a decision by the person who
holds the right to burial can cause controversy beyond the deceased’s family. One of the more unusual cases involves the body of Ted Williams,
one of the greatest baseball players in the history
of the game, as well as a military hero in
WORLD WAR II and the KOREAN WAR. John
Henry Williams, Ted’s son, decided when his
father died in July 2002 to freeze the body in liquid
nitrogen in a process called cryonics. The
body is stored in a warehouse in Arizona.
Friends and family have suggested that Ted
Williams wanted to be cremated, but his body
remains in a frozen state. John Henry’s decision
has been a major controversy, not only among
close friends and family, but among former
teammates, baseball fans, and commentators.
Duties as to Burial
Public policy favors the concept of what is
colloquially referred to as a “decent burial.”
There is a strong societal interest in the proper
disposition of the bodies of deceased persons. It
is universally recognized that a duty is owed to
both society and the deceased that the body be
buried without any unnecessary delay. This duty
rests upon whoever has the right to bury the
decedent. At common law, the duty was
imposed upon the person under whose roof the
deceased died.
Some state statutes specifically name those
people who are charged with the duty of having
a decedent buried. Statutes of this kind have
been enacted for various policy reasons, such as
the general interests of public health and the
protection of public welfare, as well as the relief
of anxiety that some people might experience
concerning the proper disposition of their
remains.

Rights to Disinterment

After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment
is not a matter of right. The disturbance
or removal of an interred body is subject to the control and direction of the court.
The law does not favor disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a
body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of
justice. Each case is individually decided, based
on its own particular facts and circumstances.
The courts frequently allow a change of burial
place in order to enable people who were
together during life to be buried together, such
as husbands and wives, or family members. Disinterment
for the purposes of reburial in a family
plot acquired at a later date is generally
authorized by law, particularly if the request is
made by the surviving members of the decedent’s
family.
Disinterment may be allowed under certain
circumstances, such as when a cemetery has
been abandoned as a burial place or when it is
condemned by the state by virtue of its EMINENT
DOMAIN power for public improvement.
Consideration of the deceased’s wishes as to
his or her burial place is instrumental in a decision
of a court as to whether or not a body
should be disinterred. Such wishes are of paramount
importance but are not necessarily controlling
in all cases, such as when subsequent
circumstances require a change of burial.
In states that have statutes regulating the
exhumation or removal of the dead, such
statutes are controlling.
Purchasing a lot in a cemetery entails a contract
that obligates the purchaser and his or her
survivors to abide by and observe the laws, rules,
and regulations of the cemetery as well as those
of the religious group that maintains it.When a
dispute over the right to disinter a corpse arises,
the court must make a finding of fact as to
whether or not the rules or regulations of the
cemetery forbid it.

Rights of Particular Persons to Disinterment
The surviving spouse or next of kin of a
deceased person has the right to let the body
remain undisturbed. This right, however, is not
absolute and can be violated when it conflicts with the public good or when the demands of
justice require it.
Also, the right to change the place of burial
is not absolute, and the courts take various factors
into consideration when deciding whether a
body should be removed for burial elsewhere,
such as the occurrence of unforeseen events. If
an elderly woman’s husband died and was
buried in New York and she subsequently moved
to California, she might be allowed to have his
remains removed to a different location to facilitate
her visits to his grave.

The consent of the surviving spouse of a
decedent to the decedent’s original resting place
is another factor that the court will consider in
determining whether a body may be disinterred,
particularly if it is against the wishes of the next
of kin. Once consent has been shown, the burial
will usually not be disturbed in the absence of
strong and convincing evidence of new and
unforeseen events.

If a body is improperly buried—that is,
buried in a grave belonging to someone else who
has not consented to the burial—the court will
order the body removed for reburial.
A landowner who allows the burial of a
deceased person on his or her property cannot
later remove the body against the will of the surviving
spouse or next of kin. On the other hand,
the landowner is entitled to object to the
removal of the remains from his or her land. A
landowner may not assert that a burial was
made without his or her consent if he or she fails
to raise any objections within a reasonable time
after the interment of the decedent.
Disinterment for Autopsies The disinterment
of a body may be ordered by the courts for
the purpose of an autopsy. Courts may permit a
body to be exhumed and an autopsy to be performed
under certain circumstances in order to
discover truth and promote justice. If disinterment
for the purpose of examination is to be
allowed, good cause and exigent circumstances
must exist to make such action necessary, such
as controversy over the cause of death, or to
determine in an heirship proceeding whether or
not a decedent ever gave birth to a child.
Disinterment for an autopsy should not be
granted arbitrarily. The law will only search for
facts by this method in the rarest of cases and
when there is a reasonable probability that
answers will be found through disturbing interment.

Civil Liabilities
A civil action for breach of contract as to the
care and burial of a corpse may be brought
under certain circumstances. An individual who
makes an agreement to properly bury a corpse
may be subject to a lawsuit if he or she gives the
body an improper burial, negligently allows the
body to be taken from his or her custody, or
allows the body to suffer indignities while in his
or her possession.

General rules that govern damages for
breach of contract have been applied in these
actions.

In one case, an undertaker was sued for failure
to embalm a body in such a manner that it
would be preserved for a reasonably long time.
The plaintiff recovered damages for illness and
disability suffered when he found out that the
body had disintegrated and become infested
with insects as a result of the undertaker’s
breach of contract. However, exemplary or
PUNITIVE DAMAGES are not recoverable in such
cases.

Funeral or Burial Expenses Even in the
absence of a contract or statute, a person may be
liable for funeral or burial expenses based on his
or her relationship to the decedent, such as a
HUSBAND AND WIFE, or a PARENT AND CHILD.
Statutes may also dictate liability. Some statutes
designate the persons charged with the duty of
burial but do not impose financial responsibility
for burial or funeral expenses. Others impose
financial liability on designated people in the
order in which they are named in the statute.
Liability for burial expenses is not ordinarily
imposed on someone merely because that person
received a financial benefit as a result of the
decedent’s death. A joint tenant will not be
charged with funeral expenses merely as a result
of the joint ownership of property with the
deceased.

Contractual Liability An individual who
would not ordinarily be obligated to pay for
burial or funeral expenses may accept responsibility
to do so by contract. The terms of such an
agreement must be very clear. The mere direction
to furnish funeral services does not automatically
create a contract for their payment.
Liability for funeral services cannot be imposed
arbitrarily. The obligation to pay the costs of a
decent burial will be enforced by the law on
those who should properly pay.
Although there is a lack of authority on the
question of who should bear the costs of disinterment and reburial, it has generally been held as the responsibility of the person who caused it
to be done.

Torts In the law of TORTS, there are a large
number of cases involving the mishandling of
corpses. These cases are concerned with mutilation,
unauthorized disinterment, interference
with proper burial, and other types of intentional
disturbance. The breach of any duty as
well as the unlawful invasion of any right existing
with regard to a corpse is a tort for which an
action may be commenced. For example, if the
wrong body is delivered to a funeral home and
the family discovers this when they attend the
wake, they may be able to recover damages for
mental suffering. Thus, the right of recovery is
not necessarily based directly on injury to the
corpse per se. Exemplary damages may be
awarded in cases where the injury to plaintiffs
was either malicious or resulting from gross
negligence.

The award of damages is subject to appellate
court review, and the adequacy or excessiveness
of the amount awarded is dependent upon the
particular circumstances of each case.
A tort action for damages in such cases may
be maintained to protect the personal feelings of
the survivors and, mainly, to compensate for the
mental distress that has been caused.
Mutilation, Embalmment, and Autopsy An
important component of the right to decent
burial is the right to possession of the body in
the same condition in which it is left by death.
There is no additional basis for recovery where
mutilation is caused simultaneously with death,
as in the case of a person who dies in a train
crash or who is fatally stabbed.

Some statutes authorize the delivery of
corpses to medical colleges for dissection under
certain conditions. It is mandatory, however,
that the consent of relatives be obtained if such
relatives can be found. Only a reasonable
inquiry is necessary, the duty of which is on the
school and on those delivering the body.
The unauthorized embalming of a body
alone does not necessarily support a CAUSE OF
ACTION for damages based upon mutilation or
mishandling.When such unauthorized embalming
occurs, combined with the resulting mental
suffering of the next of kin and other such factors,
a legal action may be brought. If, for example, an
unauthorized embalming contrary to the decedent’s
religious beliefs is performed, an actionable
wrong occurs for which damages may be granted.
Generally, an unauthorized autopsy is a tort.
No liability exists, however, when an autopsy is
performed in accordance with the consent of the
individual having burial rights or pursuant to
statute or the proper execution of the duties of
the coroner.

Offenses and Prosecutions
Several varied offenses with respect to
corpses are recognized both at common law and
under statute. At common law, it is an offense to
treat a corpse indecently by keeping, handling,
and exposing it to view in order to create the
impression that the deceased is still alive. The
attempt to dispose of a corpse for gain and profit
is a misdemeanor punishable at common law.
Ordinarily, it is a misdemeanor for the individual
possessing the duty of having a body buried
to refuse or neglect to do so, or to dispose of the
corpse indecently. The burning of a corpse in
such a way as to incite the feelings of the public
is a common-law offense.
At common law and often under statute,
interfering with another person’s right of burial
or neglecting to bury or cremate a body within a
reasonable time after death is an offense. It is
also a crime to detain a body as security for the
payment of a debt.
The mutilation of a corpse is an offense at
common law, and under some statutes, the
unauthorized dissection of a corpse is a specific
criminal offense. Someone who receives a corpse
for the purpose of dissection with the knowledge
that it has been unlawfully removed is subject
to prosecution.
The unauthorized disturbance of a grave is
indictable at common law and by statute as
highly contrary to acceptable community conduct.
Similarly, the unauthorized disinterment
of a body is a criminal offense under some
statutes and at common law.
Some statutes make disinterment for specified
purposes an offense; therefore, an offense is
not committed unless disinterment was done for
such purposes. A case where a body was
exhumed and a portion of the body was
removed by the next of kin for use as evidence in
a MALPRACTICE trial, however, did not warrant
prosecution for removal of the body because of
mere wantonness, as set forth in a statute.
Under laws that proscribe opening a grave to
remove anything interred, the act is forbidden
per se and is conclusive as to the intent with
which it is done. In such cases, no SPECIFIC INTENT, whether felonious or otherwise, needs
to be shown.
Statutes that make make disinterment an
offense do not apply to exhumations made by
public officials attempting to ascertain whether
a crime has been committed. Similarly, statutes
are not directed against cemetery authorities
who wish to change the place of burial and who
are authorized to do so; nor are they directed
against people who had obtained the permission
of those having burial rights or against those
who, under necessary permit, remove the corpse
of a relative for reinterment.