Beller Smith on Winning Side of Fourth DCA Decision

Probate litigator Amy B. Beller was on the winning side of Wilson v. Wilson, — So.3d — (Fla. 4th DCA 2014), 2014 WL 2101226, a high-profile case that involved an issue of first impression in Florida: whether or not the ashes of a decedent are considered “property.” Affirming, the Fourth District Court of Appeal answered no.

At the trial level, the mother and father agreed to have their twenty-three-year-old son cremated, but disagreed about where to bury the ashes. The father petitioned the court to declare the ashes of his son “property” under F.S. § 731.201(32) and partitioned under the Florida Probate Code, F.S. § 733.814. For religious and personal reasons, the mother opposed having the ashes divided. After an evidentiary hearing, the trial court ultimately found that the ashes were not “property” subject to partition, and denied the father’s petition.

On appeal, the Court affirmed the trial court’s holding that the ashes are not property under F.S. § 731.201(32). The Court cited commentary by Sir William Blackstone in 1753 concerning how remains of a decedent have been treated over time. The Court followed with citations to Florida case law which establish that there are no property rights in the remains of a decedent, and that the right of a personal representative or others to the remains is limited to a right of possession for purposes of burial, sepulture or other disposition.

Although the Court correctly noted that there is no Florida precedent regarding application of the Florida Probate Code’s partition statute to cremated remains, the Court adhered to Florida precedent in declaring that the decedent’s remains are not “property,” and expressly adopted the following words of Judge Warner in Cohen v. Guardianship of Cohen, 896 So. 2d 950, 955 (Fla. 4th DCA 2005):

It is a sorrowful matter to have relatives disputing in court over the remains of the deceased. In this case in particular, there is no solution that will bring peace to all parties. We express our sympathies to both sides in their loss, which must be magnified by these proceedings. Cases such as this require the most sensitive exercise of the equitable powers of the trial courts. We are confident that the experienced trial judge exercised his power with due regard for the serious and emotional issues presented.

The Court suggested that if any change in the law is desired, it would be best left to the legislature.