Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

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Who Has the Right to a Decedent's Remains

Probate and estate litigation is fraught with emotion. We often see families divided over a deceased loved one’s property. And while each dispute is different, there are commonalities; one of which is that the disputes are often “not about the money.”

One particular item that truly has no economic value but is often emotionally invaluable is a decedent’s remains. Imagine for a moment an unmarried adult child passing tragically, having never discussed with his divorced parents how he’d wish for them to dispose of his last remains. Most people would expect reasonable minds to prevail and no need for court intervention. If that were the case, the Florida Court of Appeals would not have had to determine, in a case captioned Wilson v. Wilson, that remains (in this case ashes) are not “property” subject to equitable division under the Florida probate code.

In the Wilson case, one parent wanted to bury the decedent’s ashes in West Palm Beach and the other wanted them buried in a family burial plot in Georgia. The father asked the probate court to partition the ashes to allow both. The probate court declined, finding that remains are not “property” and the Florida Court of Appeals affirmed after analyzing common law from England dating to the mid 1700s. The probate court’s order was thus upheld and the parents were given thirty days to either agree or risk the court turning the task over to a “curator” or other suitable third party.

In Colorado, there is a statute that is intended to avoid the sort of dispute that arose in the Wilson case. Pursuant to Colorado Revised Statute, Section 15-19-106, the right to control disposition of the last remains or ceremonial arrangements of a decedent passes by priority, as follows:

1. To the decedent if acting through a declaration;

2. To either the appointed Personal Representative of the Estate or a Special Administrator (or a nominee in a will if no such fiduciary has been appointed;

3. To the decedent’s surviving spouse, if not legally separated;

4. To a person with statutory right to dispose of remains in a designated beneficiary agreement;

5. To a majority of the decedent’s surviving adult children;

6. To a majority of the surviving parents or legal guardians;

7. To a majority of the adult surviving siblings;

8. To any person willing to assume legal and financial responsibility for the final disposition.

Since there is no fool-proof way to avoid disputes, the Colorado Statute also provides that disputes among persons with priority “shall be resolved by the probate court.” Careful planning through a Declaration of Disposition of Last Remains is the best way to attempt to avoid, or at least minimize, family disputes over emotionally charged issues.

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