Open Letter to my readers concerned about rights to the ashes of a loved one

Dear readers,

Quite a while ago, I responded to a short question about the rights to a deceased person’s ashes. Since then I’ve received a tsunami of individual inquiries about who has rights to the ashes from all over the USA. This letter will help me keep up with your questions by giving you some basics.

There is no federal law regarding distribution of ashes. Procedures for handling deaths, remains, and inheritances are set by each state and are specific to that state. I will answer regarding Oklahoma because I am licensed in Oklahoma. Readers outside of Oklahoma should seek counsel in the state of residence of the person who has passed. Aside from that, such issues are ripe for resolution in mediation so, as a mediator, I have the qualifications to resolve your issues wherever you are in the nation.

I hope this post will give Oklahomans the information they need and others the questions to ask your attorneys. Here I will also discuss your legal options for resolving disputes over who controls the ashes and who has a legal right to keep the ashes. Here are your 3 most common questions:

Who decides whether you will be cremated?

Under Oklahoma Statutes § 21-1158 (2018), each person may choose whether to be cremated after death. You may give the authority to a person you name in a valid legal document made before your death (prepaid cremation contract, a Proxy you appoint legally, your will, etc.)

However, if you fail to choose, the law on funerals and cremations in Oklahoma states that the right and responsibility falls to the following people in this order:
– your surviving spouse
– your adult child, or if there is more than one, the majority of your adult children
– your parents
– your sibling, or if there are more than one, the majority of your siblings
– your personal guardian
– your next of kin
– a public officer,
– any person willing to assume the responsibility, including the personal representative (executor or trust administrator) of your estate or a funeral director.

So, all of you children from the first marriage who are outraged that the fifth spouse who was only married a week to your father has kept the ashes from you, this is the law. No matter how short in duration (or even whether the spouse lives with the deceased or not), marriage means that the spouse is the first to decide and can keep the ashes, unless the deceased person executed legally binding documents to take the situation out of the statutory limitations. However, most people do not focus on this topic until after a death occurs. If you think you are going to be upset with what happens to a loved one’s ashes, now is the time to get your loved one to plan ahead for that event.

Who gets your ashes once the cremation is done?

Under Oklahoma law, the Authorizing Agent – the person (generally from the list above) who applied for the cremation permit from the State Medical Examiner — gets the ashes. Feel free to read the law directly from this link to 59 OK Stat § 59-396.29 (2019), but here are the pertinent parts:

From the Definitions

13. “Authorizing agent” means a person legally entitled to order the cremation or final disposition of particular human remains pursuant to Section 1151 or 1158 of Title 21 of the Oklahoma Statutes; and

From the Sections

A. The person charged by law with the duty of burying the body of a deceased person may discharge such duty by causing the body to be cremated as authorized and provided for in the following sections of this article, but the body of a deceased person shall not be disposed of by cremation, or other similar means, within the State of Oklahoma, except in a crematory duly licensed as provided for herein, and then only under a special permit for cremation issued in accordance with the provisions hereof.

B. Upon the completion of each cremation, and insofar as is practicable, all of the recoverable residue of the cremation process shall be removed from the crematory and placed in a separate container so that the residue may not be commingled with the cremated remains of other persons. Cremated remains of a dead human shall nit be divided or separated without the prior written consent of the authorizing agent.

C. A funeral director or funeral establishment that has received express written authorization for final disposition or cremation from the authorizing agent shall not be liable if the final disposition or cremation is performed with the provisions of the Funeral Services Licensing Act. The funeral director or funeral establishment shall not be liable for following in a reasonable fashion the instructions of any persons who falsely represent themselves as the proper authorizing agents.

D. Absent the receipt of a court order or other suitable confirmation of resolution, a funeral director or funeral establishment shall not be liable for refusing to accept human remains for final disposition or cremation if the funeral director or other agent of the funeral establishment:
1. Is aware of any dispute concerning the final disposition or cremation of the human remains; or
2. Has a reasonable basis for questioning any of the representations made by the authorizing agent.

E. Each funeral establishment which offers or performs cremations shall maintain an identification system that ensures the ability of the funeral establishment to identify the human remains in its possession throughout all phases of the cremation process. Upon completion of the cremation process, the crematory operator shall attest to the identity of the cremated remains and the date, time, and place the cremation process occurred on a form prescribed by rule of the Oklahoma Funeral Board. The form shall accompany the human remains in all phases of transportation, cremation, and return of the cremated remains.

F. The authorizing agent is responsible for the disposition of the cremated remains. If, after sixty (60) calendar days from the date of cremation, the authorizing agent or the representative of the agent has not specified the ultimate disposition or claimed the cremated remains, the funeral establishment in possession of the cremated remains may dispose of the cremated remains in a dignified and humane manner in accordance with any state, county, or municipal laws or provisions regarding the disposition of cremated remains, except as provided in subsection G of this section. A record of this disposition shall be made and kept by the entity making the disposition. Upon the disposition of unclaimed cremated remains in accordance with this subsection, the funeral establishment and entity which disposed of the cremated remains shall be discharged from any legal obligation or liability concerning the disposition of the cremated remains.

G. If the authorizing agent determines that the unclaimed cremated remains are those of a military veteran, the funeral establishment may transfer the remains to a charitable organization approved by the Military Department of the State of Oklahoma for the purpose of providing a dignified and honorable funeral for the veteran at a veterans cemetery. The charitable organization shall be listed as an exempt organization under Section 501(c) of the Internal Revenue Code, 26 U.S.C., Section 501(c). Upon the transfer of the veteran’s remains to the charitable organization, the funeral establishment shall be discharged from any legal obligation or liability concerning the disposition of the cremated remains.

Added by Laws 1963, c. 325, art. 3, § 328, operative July 1, 1963. Amended by Laws 2003, c. 57, § 24, emerg. eff. April 10, 2003. Renumbered from § 1-328 of Title 63 by Laws 2003, c. 57, § 31, emerg. eff. April 10, 2003. Amended by Laws 2010, c. 127, § 2, eff. Nov. 1, 2010.

What can I do if I didn’t get the ashes I was promised or want to dispute the actions of the Authorizing Agent?

This is such a sensitive and painful part of grieving. There are means to resolve these issues. Of course you can A) take no action and leave things exactly as they are now, B) accept the situation as it happened and find a positive way to manage your grief over the circumstances, but for ways to obtain legal resolutions, you can C) take your dispute to court or bring it to mediation.

1. Lawsuit in Court. You can hire an attorney, file a lawsuit in your district court, and try to prove that the authorizing agent either misrepresented himself or herself to the funeral or cremation service or failed to act in a timely manner to dispense with the remains. Remember that, to win in court, you must prove your side of the case. That usually means you have written or physical evidence to support your “side”. Lawsuits are a matter of public record, can take years to resolve, and will cost you not only in time, but also lots of money and emotional strain.

2. Mediation in Private. If you can persuade all the parties involved to agree to mediate, it will still cost money, but a lot less than a lawsuit. Mediation is usually completed on the day it starts, although pre-session work does occur. Another helpful facet of mediation is that the disputing parties do not have to confront each other – the mediator will present neutral information to each side and keep everyone focused on mutual benefits. You should bring your attorney to the mediation to advise you. When the mediator has negotiated an agreeable settlement of the issues, the terms will be written down and signed by all parties. The signed agreement has the legal force of a contract.

As I said earlier in this blog, I can mediate these disputes all over our nation and would be happy to assist you in resolving this sensitive situation at any time.

Those are your questions, Asked and Answered. My best to you,
Gale Allison, Mediator

Oklahoma Statutes § 21-1158 (2018)
59 OK Stat § 59-396.29 (2019)

Disclaimer: This post does not constitute legal advice for any specific dispute but is for providing general information on the topic. These codes may not be the most recent version. Please check official sources and contact your own attorney who focuses her practice on this subject matter.

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