Who Gets Custody of Remains of Deceased Persons?
Let's take a look at who gets custody of the remains of a deceased person.
This question arises frequently because people wonder if they need to pick up the ashes from the funeral home, or if they can send in a friend or relative. Or, sadly, the question also comes up when there is conflict or disagreement among family members regarding what to do with the body or who gets the ashes after cremation.
Please note that this information is not legal advice, and is provided solely to help you with a general understanding of the questions involved in dealing with and disposing of human remains. Laws vary by country, state, and even county. If you have legal questions, please consult a lawyer or attorney.
At Urns Northwest, we provide cremation urns, so we have a small part to play in the final disposition of cremated ashes. As such, we are sharing our opinion gleaned from years of assisting families as they complete the funeral arrangements of their loved ones. We hope you find this helpful.
Custody of Remains of Deceased Persons
Again, this is general information and does not constitute legal advice. Please consult a lawyer for help with your legal situation.
Who 'owns' the body of a deceased person?
The legal custody of the remains of a deceased person goes to the person named in the will. Or, if the decedent did not specify a custodian of their remains, most courts tend to honor the wishes of the decedent.
Otherwise, legal custody and responsibility for the body goes to the next of kin, most often a spouse, or the executor named in the will.
Here are some potential resolutions to the question of what to do with the body of a deceased person:
- The decedent's final wishes are followed; i.e., burial in family plot at the cemetery, or cremated and scattered, etc.
- Custody goes to executor named in will (this can often trump the claim of next-of-kin, even a spouse)
- Custody goes to spouse or "next of kin", often a child, parent, or sibling
These issues really only come up when there is a disagreement or legal questions surrounding the decedent.
Practically speaking, the responsibility deciding what to do with the body typically falls to the family member who deals with the funeral home.
The legal question arises because there are times when the person working with the funeral home is, for example, an adult son or daughter acting on behalf of their remaining living parent, who is elderly and confined to a retirement home or hospital bed. If that person has different ideas about what to do with the body than the spouse, disagreement and conflict can arise.
Who can collect ashes from the funeral home or crematorium?
The custody laws for cremated ashes are pretty much the same as for the body. The next-of-kin (or the person designated as executor) has responsibility for the ashes.
Practically speaking, usually it's the person who arranges and pays for the funeral and/or cremation who picks up the ashes after the cremation is complete.
Related: The Cremation Process - How Does Cremation Work?
You can also have a friend or relative - basically any adult - pick up the ashes from the funeral home or crematorium on your behalf. All you need to do is contact the funeral director and let them know who is coming the pick up the remains.
But unfortunately it's not always this simple. Sometimes, the family disagrees over what to do with the ashes, or who should get them.
Again, if there is a legal dispute over who should have or collect the ashes from the funeral home, please consult a lawyer for advice.
Most of the time you will find that custody of the remains will follow the order mentioned above. Namely, the first objective is to find and carry out the wishes of the deceased. Second, if that is not specified, the disposition of remains will be determined by the executor of the will. Third (if there is no will or if it is in dispute), the ashes will go to the next of kin. Spouses typically get first claim, or parents if there is no spouse. Then children in order of age, and so on by relation to the decedent.
Can a funeral home hold a body for payment?
No. The funeral home (or crematorium) must release the body (or cremated remains) to the family upon request, even if they haven't been paid yet.
However, if you get some resistance from the funeral home on this issue, it's for good reason. Funeral homes do have families claim the body and then conveniently forget to pay. Please keep in mind the work that they have done for you and your loved one, and make sure they get properly compensated.
Summary
Or, as the kids say, TL;DR:
- First, find and follow the wishes of the decedent regarding the disposition of their body
- Second, if the deceased person did not specify what to do, custody of the body (typically) goes to the executor of the will
- Third, after that custody goes to next of kin: Spouse, parents, adult child, etc.
Please bear in mind that this is not legal advice but rather general information. Laws vary by region. Please consult an attorney if you need information deeper than this cursory summary.
Read next: Does cremation happen before or after the funeral?
What should I do with the ashes?
If you're the one charged with claiming the cremated remains from the funeral home, you may be wondering what to do with the ashes.
Most commonly, families choose to put the remains into a nice cremation urn. This can then be displayed at home, buried in a cemetery plot, interred in a columbarium niche, or held for a season and then scattered. Other options include burial in or scattering from the temporary urn in which the remains come, plus many more unique, quirky, and creative options.
By and large, most families choose an attractive cremation urn. Here are some of the best.
Cremation Urns
These are just a few examples of our many beautiful cremation urns.
Together Again Companion Urn
This lovely wood urn holds the remains of two people, and boasts a timeless 3-dimensional wood inlay of a couple walking hand in hand down a country lane. Made in the USA, solid wood. Available here.
Hand-Blown Glass Urns
This is just one example from our stunning Hand-Blown Glass Urn collection. Each piece is handmade to order for your loved one, right here in Oregon. Available here.
Personalized Memorial Plaque Urns
These beautiful handcrafted plaques include personalization and also double as the cremation urn. Discreetly holding the ashes, yet honoring your loved one's memory with a gorgeous display memorial, these urns are perfect for your special someone. Many designs available here.
Marble, Granite, & Stone Urns
We have a wide array of enduring and timeless stone urns. From cultured marble urns in many different colors to this meaningfully personalized custom photo urn in granite, stone is a traditional medium to honor your loved one and will serve you well.