Disposition of Decedent’s Remains

Gately v. Hamilton Memorial Home, 442 N.J. Super. 542 (App. Div. 2015).

This decision considered the rights of surviving family members to control the disposition of the remains of a decedent.

Decedent John Gately was killed in an automobile accident on October 16, 2009.  His parents had divorced when he was a child.  The mother maintained custody of him.  At the time of death, the father lived in Florida.

After the death, the mother arranged with a funeral home for the funeral and authorized the cremation of her son.  She signed an authorization which certified that she “’alone [has] the right [to] give this authorization and direction for said cremation, and that no other person has such right[.]’”  Id. at 546.

The father claimed that he told the mother that he did not want their son cremated.  The father also indicated that he expressed his position to the funeral home.

Both parents attended the funeral services, and the son was cremated after the funeral on that same day.

The father instituted suit in the Law Division.  One focal point was whether the New Jersey Cemetery Act provided immunity to the funeral home.  The jury returned a verdict in favor of the funeral home, and the Appellate Division affirmed that result after considering the evidence.

The case addressed the related issue of which family members have the right to control disposition of the remains.  The Appellate Division explained that N.J.S.A. §45:27-22(a)(3)(emphasis added) provides that, if a decedent has not left a will appointing a person to control disposition of his remains and has no surviving spouse or adult children, the right to control the funeral and disposition of the remains passes to “[t]he surviving parent or parents of the decedent.”  The appeals court determined that the interpretation of “or” was pivotal:

Applying these principles, we conclude that the most logical construction of the phrase “surviving parent or parents of the decedent” within N.J.S.A. §45:27-22(a)(3) requires the provision to be construed in the conjunctive if there is more than one surviving parent.  The term “surviving parent” (expressed in the singular) is encompassed by the phrase “surviving parents” (expressed in the plural).  We do not presume that the Legislature would choose to use redundant terms in a statute, but rather generally strive to adopt an interpretation that gives meaning to every word.  Id. at 555.

The Appellate Division thus concluded that “the more sensible reading of the phrase is that where there are two surviving parents, a single parent alone does not have the unilateral right to control disposition.”  Id. at 556.  Nevertheless, the court found nothing in the applicable statutes and regulations that would require the funeral director to obtain authorization from all parties who have the right to control disposition of the remains, and found that in this case, based on the mother’s representations that she had sole control of the disposition of the remains, the funeral director did not violate any duty.  The court deferred to the Legislature and the Cemetery Board to consider whether amendments needed to occur to create any such duty by the funeral director to consult with others in the family in such circumstances.