Probate

While not directly a probate litigation decisions, the following decision may be of interest to some probate attorneys since it involves a contested disinterment of a deceased’s remains – an issue that can occasionally arise during probate litigation.

E. Lee Warren, et al v. IOOF Cemetery, et al.
 Case No. 02A03-0806-CV-333

In 1970, the husband passed away and was buried in a Kentucky cemetery where the wife also planned to be buried. Sometime thereafter, the wife moved in with her daughter who resided in Indiana.  The daughter eventually passed away and was interred in an Indiana cemetery. In 2005, the husband’s remains were disinterred pursuant to the grant of a Kentucky disinterment permit and moved to the Indiana cemetery where his daughter was buried.

Almost a year later, four of the surviving siblings initiated a legal action by filing their “Complaint for Declaratory Judgment and to Set Aside Authorization for Disinterment of Remains of [Husband]” alleging that when the wife gave consent for the disinterment, she suffered from “advanced Alzheimer’s and that her authorization for disinterment was wrongfully procured” and sought to have the husband’s body disinterred and re-buried in Kentucky. The wife subsequently passed away during the course of the lawsuit and was also interred in the Indiana cemetery next to her husband and daughter. The trial court granted summary judgment for the defendants and the plaintiffs appealed.      

The Court of Appeals recognized that the crux of the plaintiffs’ claims, and the disposition that they ultimately sought, was not a declaration of the invalidity of the Kentucky permit, but rather the disinterment of their parents’ remains in Indiana and re-interment in Kentucky. “The fact remains that [husband’s] and [wife’s] bodies are interred in Indiana and so remain, regardless of any preceding events that brought them there, unless and until an order of an Indiana court provides for disinterment.”

In this regard, “Indiana Code Section 23-14-57-1 specifies persons having authority to consent to disinterment, including surviving adult children. However, a person specified in the disinterment statute does not have an absolute right to disinter remains as a matter of law, and rights of others who oppose disinterment may be considered … ‘Once relief is sought in the courts the right  to disinter is within the sound discretion of the trial court.’” The Court noted that the statute, however “sets forth no specific criteria for the trial court’s consideration in exercising its discretion: and that generally “an abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it.”

In this instance, the Court reasoned that even if the wife suffered from Alzheimer’s during her later years and may not have been fully aware of the implications of some actions or decisions, she nevertheless consistently expressed her desire to be buried beside her husband. The husband and wife were now buried beside each other “in a public cemetery. One particular location cannot be equally accessible to each of the eleven surviving children as they now live in diverse locations. However, there is no indication that any surviving child would be hampered in his or her efforts to visit the gravesites. The trial court found ‘no justification’ for disinterment. We agree that the summary judgment record does not reveal any compelling reason to disinter the remains of two individuals, one of whom died over thirty-eight years ago. The trial court’s exercise of its discretion was not contrary to the facts and circumstances before it.”

The opinion was handed down on February 25, 2009 and a full text copy of the opinion can be found here for those that may be interested in reading this decision.