New York Law Concerns Disposition of a Decedent’s Remains

There are many considerations and activities relating to the settlement of a decedent’s estate. These items include the location and safekeeping of a decedent’s Last Will, the filing with the Surrogate’s Court of a Probate or Administration proceeding, the determination of next of kin, locating and collecting a decedent’s assets and the ultimate accounting and distribution of the estate to beneficiaries. However, before any of these activities take place, the decedent’s remains must be cared for and disposed of.

In most cases, family members, such as a spouse or children, work together to organize funeral and burial services. However, this is not always the case as was recently shown with respect to the dispute over the body of baseball legend Ted Williams whose remains were cryogenically frozen.

New York Public Health Law Section 4201 sets forth the priority of the persons who have the “right to control the disposition of the remains” of a decedent. This priority begins with a person designated by the decedent in a writing signed as provided for by the statute. The statute goes on to list in descending order the decedent’s surviving spouse, domestic partner, children, the decedent’s parents, the decedent’s siblings and additional specified persons such as a Court appointed Guardian. Additional provisions address directions made in a Last Will.

New York Law also recognizes that next of kin may be entitled to damages against persons who improperly interfere with their right of possession to a decedent’s remains or who improperly deal with the body. A recent case demonstrates how a fairly routine burial can turn into a distressing and bizarre incident. In Shipley v. City of New York, Index No. 101114/06, the Appellate Division, Second Department, was presented with a motion to dismiss a complaint brought by the parents of a 17 year old who was killed in an automobile accident. After an autopsy was performed by the Medical Examiner the decedent’s body was released to the parents for the funeral and burial. More than two months after the burial it was discovered that the decedent’s brain had been retained in the Medical Examiner’s office. The decedent’s brain was then returned to the family who performed a second funeral. The Court refused to dismiss the parent’s damage claim against the City finding that a cause of action existed.

New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

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