Tales from the Crypt: Disposing of Human Remains in New York
Trusts and estates litigators often see families at their very worst, fighting over everything from money to decision-making authority, and virtually anything else imaginable. So, it should come as no surprise that there have been disputes over the disposition of human remains, which necessitated legislative action to resolve these conflicts.
New York Public Health Law section 4201 “sets forth a prioritized list of [individuals] who shall presumptively have the right to direct the disposition of a decedent’s remains” (Maurer v Thibeault, 20 Misc 3d 631, 632 [Sup Ct, Cortland County 2008]). An agent appointed in a written instrument executed in accordance with section 4201 shall have first priority (Public Health Law § 4201 [requiring, among other things, that the principal and agent sign the instrument]). Absent a written instrument, the following individuals shall have priority to control the disposition of a decedent’s remains, in descending order:
(1) “the decedent’s surviving spouse;”
(2) “the decedent’s surviving domestic partner;”
(3) “any of the decedent’s surviving children eighteen years of age or older;”
(4) “either of the decedent’s surviving parents;”
(5) “any of the decedent’s surviving siblings eighteen years of age or older;”
(6) “a guardian appointed pursuant to article seventeen or seventeen-A of the surrogate’s court procedure act or article eighty-one of the mental hygiene law;”
(7) “any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;”
(8) “a duly appointed fiduciary of the estate of the decedent;”
(9) “a close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one either on this list is reasonable available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section [stating that he or she has no knowledge that the decedent executed a written instrument containing directions for the disposition of his or her remains]; or”
(10) “a chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate’s court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section” (id.).
The person with priority must faithfully carry out the decedent’s directions to the extent permitted by the law and the circumstances (id.).
In Maurer v Thibeault, the petitioner did something that no parent should have to do, she requested permission to determine the disposition of her deceased daughter’s remains after the daughter died under suspicious circumstances (20 Misc3d at 632-37). Although the respondent, the decedent’s husband, asserted that he should decide how his wife was laid to rest, the petitioner argued that the respondent should not be given priority because he was estranged from the decedent and, therefore, did not qualify as her “surviving spouse” under the statute (id.).
Noting that the decedent never executed a written instrument in accordance with section 4201, the court then addressed whether the respondent had priority over the petitioner as the decedent’s surviving spouse (id.). The court concluded that he did not (id.). In doing so, the court relied on evidence that established the decedent’s hatred, loathing and fear for the respondent immediately before her death (id.). The court also referenced the police report she filed against the respondent just one month prior to her death, accusing him of attacking and strangling her “to the point of unconsciousness” (id.).
Based upon those facts and the line of cases precluding a separated or estranged person from qualifying as a “surviving spouse,” the court rejected the respondent’s claim of priority (id.). The court also granted the petitioner’s request for permission to control the disposition of the decedent’s remains (id.). As the decedent’s surviving parent, the petitioner had priority to do so, since there was no written instrument, the respondent did not qualify as a surviving spouse, and the decedent had no domestic partner or child age 18 or older (id.).
In New York, the disposition of remains is presumptively governed by section 4201. Absent a valid written instrument appointing an agent for that purpose, section 4201 sets forth which individuals shall have priority to make decisions concerning the disposition of remains.
Widow Barred from Bringing Legal Malpractice Action against Husband's Estate Planning Attorneys
Trusts and estates practitioners often provide joint representation to married couples as they create their estate plans. Questions as to the existence of joint representation may arise if husband and wife retain the same estate planning attorney, but do not meet or communicate with counsel together; instead, creating their own separate estate plans. These were the circumstances in the recent case of Leff v Fulbright & Jaworski, LLP, et. al. (Sup Ct, New York County 2009), in which a widow brought a legal malpractice action against her estate planning attorneys in the context of their actions as counsel to her late husband. The result is food for thought, and perhaps may encourage attorneys and their married clients to assume more clearly defined roles.
Joel B. Leff (“Decedent”) died in 2002 with an estate valued at approximately $90 million. In 1974, the Decedent entered into a Separation Agreement as part of a divorce settlement with his first wife, with whom he had a son. Said Agreement provided that the Decedent would bequeath to his son by Will no less than one-half of his probate estate, assuming his first wife remarried. Years later, the Decedent retained an estate planning attorney, who had no involvement in the drafting of the Separation Agreement. A copy of the Separation Agreement was given to the attorney, and remained in his file throughout his representation of the Decedent.
In 1998, the Decedent married Plaintiff. Prior to their marriage, they entered into a prenuptial agreement providing that each spouse “would have the right to dispose of his or her property . . . as each party sees fit,” but further stated that the Decedent would bequeath the marital residence and devise a specific amount to Plaintiff (id. at 2). Thereafter, the Decedent, represented by Defendants, executed a number of Wills and Codicils. At no time in the drafting of these instruments were the terms of the Separation Agreement considered by Decedent or his attorneys.
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Unsealing Adoption Records
Adoption records are generally confidential in New York, but at times they are unsealed for medical purposes. While it is rare for these records to be unsealed for other reasons, courts will at times determine that it is proper to do so in a particular case.
Under New York law, adoption records are sealed “to protect and insure [the] confidentiality [that] is ‘vital to the adoption process’” (Matter of Victor M.I. I., 23 Misc3d 1103[A], at *1 [Sur Ct Nassau County 2009]; DRL § 114[2]). The confidentiality serves several important purposes (Matter of Linda F. M., 52 NY2d 236, 239 [1981]). First, it “shields the child from possibly disturbing facts surrounding his or her birth and parentage” (id.). Second, “it permits the adoptive parents to develop a close relationship with the child free from interference or distraction” (id.). Third, “it provides the natural parents with an anonymity that they may consider vital” (id.).
Notwithstanding the preference for confidentiality, there are circumstances in which it may be appropriate to unseal adoption records (DRL § 114[2]). Indeed, “adoption records may be unsealed upon a showing of good cause” and “due notice to the adoptive parents” (Victor M.I. I., 23 Misc3d 1103[A], at *1 [internal quotation marks omitted]). “Good cause” typically arises for medical reasons, such as a serious health issue (id.). Further, while adoption records may be unsealed for non-medical reasons, exceptions to the rule for non-medical reasons are “rare” (Matter of Lewis, NYLJ, 4/20/2007, at 32 [Sur Ct Kings County]).
Matter of Victor M.I. I. involves one of those rare exceptions (23 Misc3d 1103[A], at *1-3 [Sur Ct, Nassau County 2009]). There, the petitioner sought to unseal adoption records for the purpose of obtaining certified copies of his pre-adoption birth certificate (id. at *1). The petitioner did so “in order to establish his Hungarian lineage [and] become a citizen of Hungary, based upon the status of his biological mother [as] a Hungarian citizen” (id.). In support of his application, the petitioner asserted that he “would benefit from Hungarian citizenship because he frequently travels to Hungary for business and personal reasons and resides there on a part-time basis” (id.). He also submitted an affidavit from his then-deceased biological mother, which evidenced her consent to the requested relief (id.).
Nassau County Surrogate John B. Riordan granted the petitioner’s application, noting that the policies favoring confidentiality did not weigh against the petitioner’s prayer to obtain copies of his pre-adoption birth certificate (id. at *2). As Surrogate Riordan explained, the petitioner’s adoptive parents were deceased, his biological mother had consented to unsealing the records, and the petitioner could not obtain his original birth certificate from any other source (id.). Those factors, when taken in conjunction with the “substantive benefit” the petitioner would enjoy if afforded the opportunity to secure copies of his original birth certificate, constituted “good cause” (id.). Accordingly, the court granted the application to unseal the adoption records to permit the petitioner to obtain copies of his pre-adoption birth certificate (id. at *2-3).
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Although the confidentiality of adoption records is favored, there are circumstances in which such documents may be unsealed. Those circumstances generally stem from health-related reasons, but may occasionally arise for non-medical reasons as well. The Victor M.I. I. case makes that much clear.
