What happens to ashes and other remains?

Ryan Murphy’s true-crime series about Jeffrey Dahmer was watched for 196.2 million hours in its first week on streaming platform Netflix. Clearly, the shocking story about the horrific actions of Dahmer have had global audiences gripped. In amongst the tales about his victims, a relatively normal scene stood out to McAlister Family Law Associate, George Wilson, for reasons that many may have overlooked.

Towards the end of the series, after Dahmer has been killed in prison, the show depicts the scene of his separated parents arguing over what should happen to his remains. Dahmer’s father wished for his entire body to be cremated as per his son’s wishes. Dahmer’s mother, on the other hand, held the position that her son’s brain should be donated to University for scientific purposes. Thus, the question still stands; what happens to the remains of a person in the context of either separated parents, spouses, or anyone else for that matter. Although this topic is rather macabre, it presents itself in more cases than the general public could ever imagine.

Naturally, the death of one’s child (or significant loved one) is something that none of us would ever wish and is heart-breaking to even think of. But what happens to their remains? Does someone have more of a right to the remains than another person, for example in an urn?

The basic starting point is that a body, or the remains of one, is not property and the person who is entitled to the possession of a remains is the person who is under a duty to dispose of the body. If a body is cremated, the crematorium authority must hand over the ashes to the person who delivered the body to them. Generally speaking, there is the rule of ‘no property in a corpse’. It is not possible for a body to be gifted, or disposed of by a will, bought by one person, or sold by another. It is permitted, in statute, that the body, or part thereof, can be donated for medicine or science.

Firstly, a hospital has the right to detain a body if it is considered infectious, or if the person has passed away from a number of diseases. The coroner then has the right to take possession of the body, albeit temporarily, in order to determine the cause of death. Then, if there is a will, the person entitled to possession is the named executor of the will. In scenarios where a will is not present, the person who has the priority on intestacy will have possession and, under a very distinct set of rules, the parents of a minor child will have a duty to arrange a child’s funeral. To complicate matters even further, the case of R v Kelly held that it was possible for there to be property rights over ashes of the deceased on the basis that they have different attributes following an application of skill – that skill being the act of cremation. Notwithstanding this, this will only apply in a very specific set of cases.

It is the sad truth that, as in many family disputes involving items much less sacred than the body of a loved one, many simply cannot agree on what happens next. Some would consider that the caring of the body would fall to the next of kin, surviving spouse, parent, or other close family member. It is vital that these issues are dealt with by employing compassion and respect, both for the living and the dead, and to attempt to resolve any family dispute.