Two years ago, in “Tales from the Crypt: Disposing of Human Remains in New York”, I wrote that: “[i]n New York, the disposition of remains is presumptively governed by [Public Health Law ] section 4201; and that “[a]bsent 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” (see “Tales from the Crypt: Disposing of Human Remains in New York”). While those statements remain true today, a recent decision by Nassau County Supreme Court Justice Joel K. Asarch addresses the extent to which a decedent’s intent governs the disposition of his remains where surviving family members have expressed conflicting views on the issue and the individual who has priority to make the decision seeks to dispose of the decedent’s remains in a manner that is inconsistent with the decedent’s expressed intentions (see Matter of Grace D., 922 NYS2d 914 [Sup Ct, Nassau County 2011]).

Although “the common-law right of sepulcher gives [a decedent’s] next of kin the absolute right to the immediate possession of a decedent’s body for preservation and burial” (Melfi v M. Sinai Hosp., 64 AD3d 26, 31 [1st Dept 2009]), 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” (see Maurer v Thibeault, 20 Misc3d 631, 632 [Sup Ct, Cortland County 2008]; Public Health Law § 4201). At the top of the list is an agent appointed in a written instrument that is duly executed in accordance with section 4201 (see Public Health Law § 4201). Absent such a written instrument, the decedent’s surviving spouse, surviving domestic partner, surviving children who are eighteen years of age or older, and surviving siblings who are eighteen years of age or older, among others, in descending order, shall have priority (see id.). No matter who ultimately has priority, however, the individual charged with making a decision concerning the decedent’s final resting place must do so in a manner that is consistent with “the moral and individual beliefs and wishes of the decedent” (id.[c]).

In Matter of Grace D., the decedent’s surviving sister and niece were at odds as to how to dispose of the decedent’s remains (see Grace D., 922 NYS2d at 915-17). On the one hand, the decedent’s sister sought to have the decedent’s remains cremated and transported to her home in Vermont, where the decedent experienced artistic and musical inspiration during his life (see id.). Although she acknowledged that the decedent never expressed any intention to be cremated, the sister explained that, upon her death, she wished to be cremated and to have the decedent’s ashes combined with her cremains (see id.).

On the other hand, the decedent’s niece expressed her desire that the decedent be buried, as he intended, in the Catholic cemetery burial plot that he had purchased for himself thirty-five years before meeting his maker (see id.). The niece testified that the decedent “was a religious man, who served as the Choir Director at a local church for several decades, and expected that he would be buried in the customary garb of a Knight of the Order of the Holy Sepulchre of which he was a member” (see id.).

Noting that the decedent’s Last Will and Testament did not indicate his desire for the disposition of his remains; that there was no duly appointed agent to decide that issue; and that the decedent was survived by two sisters, including the one who sought to have his remains cremated, Justice Asarch found that the sisters would have statutory priority over all other surviving heirs to determine where the decedent’s final resting place would be (see id.). However, Justice Asarch also explained that since the decedent left a clear indication as to his wishes by purchasing a burial plot and paying for its permanent care, the court was bound to respect the decedent’s intentions (see id.). Justice Asarch, therefore, ordered that the decedent’s remains be buried in his cemetery plot, not cremated, as his sister, but not the decedent, wished (see id.).

In sum, a decedent’s testamentary intent is the paramount concern in cases concerning the disposition of human remains. To the extent that the decedent’s wishes can be ascertained, they must be honored by the decedent’s surviving relatives, most especially those who have priority to decide where the decedent’s final resting place will be.