Case Summary: Appellate Division Adopts Procedure for Disposition of Deceased Child’s Remains

Freedman v. Freedman, 2023 WL 105211 (N.J. Super. App. Div. January 5, 2023)

This “sad case” from the Family Part involved a burial dispute between parents over their adult son’s cremation remains and personal property.  The court decided that a plenary hearing was not necessary to resolve the dispute, and adopted a procedure for trial courts to follow in resolving future parental disputes over the disposition of deceased children’s remains.

The parties’ son died unexpectedly and suddenly at the age of 20, while attending college in Colorado.  His mother, Colleen Freedman, unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service.  Colleen had sole possession of the remains and the son’s personal effects and refused to divide them with the father.

The parents filed contested proceedings in the Family Part to resolve the dispute and to terminate child support and medical insurance coverage.  Following limited oral argument, the judge decided those applications without conducting a plenary hearing.

The judge entered two orders on consecutive days.  The first order scheduled the case for a plenary hearing.  The second order, however, dispensed with the plenary hearing and instead authorized the mother to control decisions concerning the disposition of the remains because she had the closer relationship with their son.

The father appealed.

The Appellate Division initially noted that the proceedings should have been filed and heard in the Probate Part, not the Family Part.  Except for the application to terminate child support and medical insurance coverage, the Family Part lacked jurisdiction to hear the applications filed after the son’s death.

Next, the court cited that the disposition of remains is governed by the New Jersey Cemetery Act of 2003 (“the Cemetery Act”), N.J.S.A. § 45:27-1 to -41, and related case law.  N.J.S.A. § 45:27-22 addresses who may control the funeral and disposition of a decedent’s remains.  If a decedent has not left a will appointing a person to control disposition and has no surviving spouse or children, the statutory right to control the funeral and disposition of the remains vests in the surviving parent or parents of the decedent.  Gately v. Hamilton Mem’l Home, Inc., 442 N.J. Super. 542, 554 (App. Div. 2015); N.J.S.A. § 45:27-22(a)(3).  Where there are two surviving parents, a single parent does not have the unilateral right to control disposition.  Rather, decision-making authority is to be jointly exercised.

Here, the son died without a spouse or children, without a will, and without any written directive regarding his funeral or the disposition of his remains.  These facts were analogous to the situation that arose in In re Estate of Travers, 457 N.J. Super. 477 (Ch. Div. 2017), where the decedent’s father wanted his son’s remains buried, and the mother wanted her son’s remains cremated.  The Travers court recognized that in the event of a dispute between parents, the court has authority under the statute to resolve any such impasse.  457 N.J. Super. at 482-83.  However, the Travers and Gately courts also noted that the Cemetery Act and New Jersey case law provided no guidance on resolving a dispute between parents.

In this case, the Appellate Division adopted a modified version of the four-prong test formulated in Travers to resolve disputes over funeral arrangements and disposition of remains.  Specifically, where parents of a deceased child who died intestate dispute the funeral arrangements or disposition of remains, the court is to consider the following factors in selecting the person in control pursuant to N.J.S.A. § 45:27-22:

  1. Which parent is more likely to abide by the decedent’s expressed preferences, if any;
  2. Which parent had a closer relationship with the decedent and is in a better position to deduce the decedent’s preferences and expectations upon death;
  3. Which parent is more likely to adhere to the decedent’s religious beliefs and cultural practices, to the extent that such beliefs and practices pertain to funeral arrangements or disposal of remains and reflect the decedent’s preferences; and
  4. Which parent will likely be designated administrator of the estate and act in the best interests of the estate relating to funeral arrangements and disposition of decedent’s remains.

The Appellate Division then applied this standard to the undisputed facts.  First, the decedent left no will and did not express any preferences regarding funeral arrangements or disposition of his remains.  Second, the decedent lived exclusively with Colleen for approximately six years until he left for college.  For almost all of that period, the father exercised no parenting time.  Even though the parties contested the reasons why, Colleen had the closer relationship with their son at the time of his death and was in a better position to ascertain the decedent’s preferences and expectations.  Third, there was no evidence that the decedent practiced any religion or that religious beliefs were a factor to be considered.  Fourth, the decedent’s assets appeared to consist mainly of personal property having minimal economic value, and no administrator had yet been appointed.

The Appellate Division commented that the father had ample opportunity to litigate Colleen’s alleged alienation of their son’s affection and interference with his parenting time and communication with his late son in the Family Party during the years leading up to the son’s 18th birthday.  He chose not to do so, instead waiting to first raise those issues until more than two after their son turned 18, when the dispute over the remains and personal effects arose.  The Appellate Division found those issues waived, and concluded that a plenary hearing regarding the parties’ conduct during the last five years of their son’s life was not required since the overwhelming evidence demonstrated that Colleen had a closer relationship with their son.

The Appellate Division affirmed that Colleen would retain control over the remains, and also provided guidance on the proper procedure to be used in future similar disputes in intestate estates.  The proceedings contesting the funeral arrangements or disposition of remains should be brought in the Probate Part rather than the Family Part.

Also, the Appellate Division suggested that “[t]he probate judge should consider appointing a pendente lite administrator who shall investigate the facts and attempt to resolve the issues.”  If a resolution is not reached, the probate court shall apply the test now adopted to determine which parent or next of kin of equal standing is to control the funeral arrangements and disposition of remains.  The Appellate Division warned that such proceedings “should not involve protracted hearings relating to the history of the parties over multiple years leading up to the death.”