12/13/2005

Issues Surrounding the Authorization of Cremation

By: T. Scott Gilligan, OFDA General Counsel

Section 4717.22 of the Ohio Revised Code sets up a priority list of those individuals who may authorize a cremation in Ohio. This is an important statute to keep handy so the funeral director can verify he or she is taking directions from the individual who holds the power to authorize the cremation.

Our office often receives inquiries from OFDA members regarding the authority to cremate. Since cremation is an irreversible process and wrongful cremation cases involve liability awards averaging $350,000, it is prudent for funeral homes to check and confirm their interpretation of the statute,

Set out below are several issues that have arisen with regard to Section 4717.22 and which are important for funeral directors to be aware of:

1. Question: A young widow with a 19-year-old son and a 17-year-old daughter died. Does the funeral home need both of the children to consent to the cremation?

Answer: No. Section 4717.22(A)(4) gives the right to authorize cremation only to adult (age 18 and over) children of the decedent. Therefore, only the 19-year-old son would have the authority to make the cremation decision.

2. Question: A divorced father with minor children dies. His ex-wife directs the funeral
home to proceed with cremation. While she acknowledges she has no authority as the surviving spouse since the divorce terminated that right, she maintains as the parent of the surviving children, she can make the authorization on their behalf. Is she correct?
Answer: No. Section 4717.22(A)(4) only gives the authority to the decedent's surviving adult children. A child who is under 18 years of age has no authority. Therefore, the mother of the child would have no authority to direct cremation on behalf of the child.

3. Question: A 16-year-old mother delivers a full-term baby who dies shortly after birth. The mother and the 17-year-old father agree on cremation. Should the funeral home seek authorization from the grandparents since the parents are minors?

Answer: It is not necessary. Section 4717.22(A)(5) authorizes the surviving parents to make the cremation decision. Unlike subsection (4) which authorizes only the adult children of the decedent to make a cremation decision, subsection (5) does not require the parents be adults. Therefore, permission to cremate should be obtained from the parents even though they are minors.

4. Question: A widow dies and her will designates her lawyer as the executor. The lawyer instructs the funeral home to cremate the decedent's remains even though the widow's adult children prefer burial. Does Section 4717.22 give the attorney the paramount right to order the cremation?

Answer: Maybe. An executor is given the third priority in Section 4717.22(A) and is above the decedent's adult children, but only if the executor is carrying out the decedent's written instructions concerning final disposition. Therefore, if the attorney in this case can produce written instructions from the decedent directing her remains be cremated, then the lawyer would have priority over the surviving children. However, without those written instructions, the lawyer has no authority solely on the basis of being the executor. Unless the lawyer is able to produce the written instructions for the funeral director to review, the funeral director should follow the burial instructions of the surviving adult children.

5. Question: A woman claims to be the common law spouse of the decedent. Does that give her the right to make the cremation decision?

Answer: Yes, provided she truly qualifies as the common law spouse. Section 4717.22(A)(1) provides the surviving spouse with the first priority on cremation decisions. This section would include spouses by marriage and those established by common law.

Funeral directors should be aware that under Section 3105.12 of the Ohio Revised Code, Ohio does recognize the validity of a common law marriage, but only if the marriage was established prior to October 10, 1991. If a couple was not in a common law marriage prior to October 10, 1991, then any claim by an individual that he or she is a common law spouse is legally invalid.
In this case, the first question the funeral director should ask is when the alleged common law marriage began. If the woman in this case indicates it began after October 10, 1991, there is no possibility of a common law marriage.

In order to establish a common law marriage in Ohio, there must be evidence the two individuals agreed to hold themselves out in the public as husband and wife. Generally, this requires not only cohabitation, but also other evidence such as jointly holding property, filing joint tax returns, listing each other as primary beneficiaries on insurance policies, joint banking accounts, a joint listing in the phone book and identification as husband and wife in family health insurance policies.

Only a court can rule that a common law marriage exists. Therefore, funeral directors should not simply accept the representations of an individual that a common law marriage exists. Rather, proof should be provided in the form of some type of court ruling prior to the funeral home recognizing a common law marriage exists.

OFDA members with questions regarding this article may contact T. Scott Gilligan at (513) 871-6332.