Joan Marino v. Larry R. Marino, 200 N.J. 315 (2009), A-18-08, September 24, 2009:

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Although the wishes of a decedent were relevant at common law, see Sherman v. Sherman, 330 N.J. Super. 638, 649-50 (Ch. Div. 1999); Felipe, supra, 239 N.J. Super. at 87; Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290 (Ch. Div. 1951), the 2003 enactment of the New Jersey Cemetery Act, N.J.S.A. 45:27-1 to -38, made a decedent’s preference regarding the disposition of his or her remains binding only if stated expressly in a will, see N.J.S.A. 45:27-22(a).

The interment statute provides:

a. If a decedent, in a will as defined in N.J.S.A. 3B:1-2, appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. A person so appointed shall not have to be executor of the will. The funeral and disposition may occur prior to probate of the will . . . . If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:

(1) The surviving spouse of the decedent or the surviving domestic partner.
(2) A majority of the surviving adult children of the decedent.
(3) The surviving parent or parents of the decedent.
(4) A majority of the brothers and sisters of the decedent.
(5) Other next of kin of the decedent according to the degree of consanguinity.
(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

[N.J.S.A. 45:27-22.]

Courts of equity have long been vested with authority to address questions relating to “removal or other disturbance” of dead bodies, In re Sheffield Farms Co., 22 N.J. 548, 556 (1956).

The disinterment statute, N.J.S.A. 45:27-23, is the controlling statute as “whether the remains of the parties’ beloved husband and father should be disinterred and relocated.”

The statute relating to disinterment provides in pertinent part as follows:

a. Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:

(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;
(2) removal is authorized by a State disinterment permit issued by the local board of health; and
(3) the cemetery finds that removal is feasible.

[N.J.S.A. 45:27-23.]

Although there is a longstanding public policy disfavoring disinterment, several factors have traditionally been considered to be relevant, with the decedent’s preference being the most important. See Felipe v. Vega, 239 N.J. Super. 81, 84-87 (Ch. Div. 1989).

The interment statute, N.J.S.A. 45:27-22, requires compliance with a decedent’s preference only if it is expressed in a Last Will and Testament. See Bruning v. Eckman Funeral Home, 300 N.J. Super. 424, 431 (App. Div. 1997) (decedent’s preference for burial was paramount). However, there is no similar limitation on the court’s equitable power to decide the question of disinterment.

Nothing in the disinterment statute suggests that it is intended to be used as a remedy, even for one who was deprived of the right to inter in the first place. Instead, to the extent that the Legislature made any provision for relief in such circumstances, it is expressed in the interment statute’s provision making a civil remedy available against one who wrongfully effects interment. See N.J.S.A. 45:27-22(d) (deeming that one who “signs an authorization for the . . . disposition of human remains” warrants truth of facts asserted; authorizing claim sounding in breach of warranty or false statement).

See related Blog Post, published in the New Jersey Family Law blog.

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