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Florida Appeals Court Refuses to Divide the Remains of Child of Divorced Parents to Facilitate Dual Burials

DSCF2901.JPGAn ex-husband’s attempt to force his ex-wife to share the cremated ashes of their son failed to succeed in either a Palm Beach County trial court or the 4th District Court of Appeal. The recent decisions make clear that the remains of the couple’s son did not legally constitute property and were not subject to the rules of property division.

The 2007 divorce of this Florida couple was a relationship marked by contentiousness, litigation, and tragedy. They battled over items as small as home videos and a baseball card collection. Then, in 2010, disaster struck when Wellington polo magnate John Goodman, while allegedly driving drunk, killed the Wilsons’ 23-year-old son by crashing his Bentley into the son’s car.

The couple launched a civil suit against Goodman, who eventually settled with the family for $46 million. The settlement brought an end to the husband’s alimony obligation to his ex-wife, but not to their legal battles. The couple could not agree regarding the burial of their son. The wife wanted to bury her son in Palm Beach County, where the son lived and died, while the husband desired to bury the son in Georgia, next to the graves of his parents. The husband argued before a Palm Beach County trial court that the son’s cremated ashes, which remain housed in a Royal Palm Beach funeral home, were property and should be subject to division, meaning splitting them in half and dividing between each of the parents.

Both the trial court and the 4th District Court of Appeal disagreed. The appeals court’s research extended from modern Florida decisions to cases and legal commentaries going back to 1700s England. In each instance, the conclusion was the same: a deceased person’s heirs or next of kin have no property interest in the remains of the deceased. The next of kin have a legal claim for seeking possession of the deceased’s remains for purposes of burial or other proper final arrangement, but that legal claim did not constitute a property right under the law.

The father was unsuccessful in persuading the court to follow a 2004 Indiana appellate court decision dividing the ashes of a 17-year-old girl killed in an auto accident. The Indiana case was different from the Wilsons’ case because the deceased girl had expressed a desire to have her ashes split and spread at different locations, and no one claimed that the girl’s cremated ashes were “property.”

Although the present case was technically a probate matter, the outcome reached by the appeals court is instructive for divorcing couples in Florida, in the event that they lose a child in their custody. Whatever basis a parent may use to persuade a court to divide the child’s ashes, claiming that those ashes are “property” and subject to equitable distribution, likely will not serve as a winning argument.

Unfortunately, some divorces become highly contentious and prolonged affairs. Regardless of whether your divorce is proceeding in the spirit of cooperation or is a hostile battle, a capable Florida family law attorney can help you along the way. For thoughtful and constructive advice throughout the process, and aggressive litigation when necessary, consult the South Florida family law attorneys of Sandy T. Fox, P.A. Our attorneys have the skills and experience to help you complete your divorce.

Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More Blog Posts:

Adding Husband to Cemetery Plot Deed Makes Plot Marital Asset, Fort Lauderdale Divorce Lawyer Blog, April 21, 2014
Court Decision Highlights the Correct — and Incorrect — Ways to Establish the Value of Marital Assets, Fort Lauderdale Divorce Lawyer Blog, Jan. 7, 2014