4th DCA
4th DCA (Melanie Bell)

Citing English law on an issue of first impression, the Fourth District Court of Appeal ruled Wednesday that the ashes of a dead son are not property and courts can’t divide them.

The son of William Wilson Jr. and Lili M. Wilson died at age 23 in an auto accident. He left no will or instructions on what to do with his body.

He was cremated, but the divorced parents disagreed over what to do with the ashes. The mother wanted them buried in West Palm Beach, and the father wanted them buried in a family plot in Blue Ridge, Ga.

William petitioned Palm Beach Circuit Judge Martin Colin in probate court to have the ashes declared property so he could take half.

For religious reasons, Lili opposed dividing the ashes, noted District Judge Melanie May, who wrote the opinion for a unanimous panel.

Colin ruled the ashes were not property.

May noted no Florida court has answered whether cremated remains qualify as property, “and so we start traveling back in history to reflect on how deceased bodies and ashes have been viewed over time.”

She cited an 1857 English case, Regina v. Sharpe, where a defendant appealed a misdemeanor conviction for wrongful removal of a corpse. The court said, “Our law recognizes no property in a corpse.”

Citing an 1856 case, In re Widening of Beekman Street, May said the historical basis for this thinking was derived in part from the English view that “the secular tribunals would protect the monument, the winding-sheet, the grave-clothes, even down to the ribbon which tied the queue; but the church would guard the skull and bones.”

Florida case law has had some experience with the disposition of the dead. May noted in 1950 that the Florida Supreme Court found the right to remains “is limited to possession of the body … for the purpose of burial, sepulture or other lawful disposition.”

The father relied on an Indiana Supreme Court case, In re Estate of K.A., where the child of a divorced couple was killed in an auto accident and the father petitioned for division of the ashes against the mother’s wishes. The court ruled in the father’s favor.

While that would seem to be on point, May noted an important distinction. The court had evidence the deceased wanted her ashes divided and spread at different locations.

The Fourth District cited Cohen v. Guardianship of Cohen, a 2005 dispute over burying a man’s body with his wife in Florida or in a family plot in New York. The trial court ordered the body to be buried in Florida.

“Given the sensitive nature of the subject matter and the fact that, historically, cremated remains have been treated the same as a body, neither constituting ‘property,’ we decline to craft a policy at odds with our history and precedent,” May said.

Judges Martha Warner, who wrote the 2005 opinion, and Spencer Levine concurred.

Amy Beller of Beller Smith in Boca Raton was the mother’s trial attorney and co-counsel on appeal. Kristina Pett of Pett Furman in Boca Raton was the appellate co-counsel. They had no comment.

The father was represented by Joy Bartman of Boca Raton, who had no comment by deadline.