Who Can Authorize An Autopsy Under Ohio Law?

When a loved one dies, family members might wonder who has the right to authorize, consent to, or prevent an autopsy if one is not automatically performed under Ohio law.

Under Ohio Revised Code 2108.50, an autopsy may be performed under Ohio law if consent has been given by the person who has the right of disposition under section 2108.70 or 2108.81 of the Revised Code.

What Is The Right Of Disposition Of Remains Under Ohio Law?

The right of disposition of remains under Ohio law means certain rights concerning their remains that a declarant chooses to assign to a representative in a written declaration,  or rights given under Ohio law when no declaration is in effect, as set forth below.

Written Declaration

An adult who is of sound mind may execute at any time a written declaration assigning to a representative one or more of the following rights:

  1. The right to direct the disposition, after death, of the declarant’s body or any part of the declarant’s body that becomes separated from the body before death. This right includes the right to determine the location, manner, and conditions of the disposition of the declarant’s bodily remains.
  2. The right to make arrangements and purchase goods and services for the declarant’s funeral. This right includes the right to determine the location, manner, and condition of the declarant’s funeral.
  3. The right to make arrangements and purchase goods and services for the declarant’s burial, cremation, or other manner of final disposition. This right includes the right to determine the location, manner, and condition of the declarant’s burial, cremation, or other manner of final disposition.

 

See Ohio Revised Code section 2108.70.  The general form for a written declaration of assignment under Ohio law is set forth in section 2108.72 of the Ohio Revised Code.

If a declarant named a spouse as their representative, and then subsequently divorced, the former spouse shall not longer be qualified to serve as the declarant’s representative or successor representative.  If the declarant signs a document after the termination of the marriage stating that they want the former spouse to continue to be the representative, then the disqualification rule shall not apply.   See Ohio Revised Code 2108.76.  Read about the impact of divorce on an Ohio will here.

No Written Declaration

If there is no written declaration, then the right of disposition is assigned to the following persons, if mentally competent adults who can be located with reasonable effort, in the order of priority stated:

  1. The deceased person’s surviving spouse;
  2. The sole surviving child of the deceased person or, if there is more than one surviving child, all of the surviving children, collectively;
  3. The deceased person’s surviving parent or parents;
  4. The deceased person’s surviving sibling, whether of the whole or of the half blood or, if there is more than one sibling of the whole or of the half blood, all of the surviving siblings, collectively;
  5. The deceased person’s surviving grandparent or grandparents;
  6. The deceased person’s surviving grandchild, or if there is more than one surviving grandchild, all of the surviving grandchildren collectively;
  7. The lineal descendants of the deceased person’s grandparents, as described in division (I) of section 2105.06 of the Revised Code;
  8. The person who was the deceased person’s guardian at the time of the deceased person’s death, if a guardian had been appointed;
  9. Any other person willing to assume the right of disposition, including the personal representative of the deceased person’s estate or the licensed funeral director with custody of the deceased person’s body, after attesting in writing that a good faith effort has been made to locate the persons in divisions (B)(1) to (8) of this section.
  10. If the deceased person was an indigent person or other person the final disposition of whose body is the financial and statutory responsibility of the state or a political subdivision of this state, the public officer or employee responsible for arranging the final disposition of the remains of the deceased person.

 

When Is An Autopsy Performed Under Ohio Law?

A coroner is required to perform an autopsy under Ohio law in limited circumstances, including when a child under the age of two in apparent good health dies suddenly (Ohio Revised Code 313.121).

If an autopsy is contrary to a deceased person’s religious beliefs, then an autopsy might be delayed for 48 hours if the coroner concludes that the autopsy is a compelling public necessity, or not performed at all.  A friend or relative must file a lawsuit to enjoin the autopsy.

Section 313.131 of the Ohio Revised Code addresses the situation when an autopsy is contrary to a deceased person’s religious beliefs.  If you seek to enjoin an autopsy, you must become familiar with this law.

What Is A Compelling Public Necessity For An Autopsy Under Ohio Law?

A compelling public necessity for an autopsy under Ohio law is defined as follows:

An autopsy is a compelling public necessity if it is necessary to the conduct of an investigation by law enforcement officials of a homicide or suspected homicide, or any other criminal investigation, or is necessary to establish the cause of the deceased person’s death for the purpose of protecting against an immediate and substantial threat to the public health.

Who Can Petition To Stop An Autopsy In Ohio?

When someone wants to stop the performance of an autopsy under Ohio law for religious reasons, section 313.131 provides an order of priority of friends and relatives that the coroner shall consider information from when there is a disagreement.  The coroner is to consider information provided by the person of highest priority, as determined by which is listed first among the following:

  1.  The deceased person’s surviving spouse;
  2. An adult son or daughter of the deceased person;
  3. Either parent of the deceased person;
  4. An adult brother or sister of the deceased person;
  5. The guardian of the person of the deceased person at the time of death;
  6. A person other than those listed in divisions (E)(1) to (5) of this section who is a friend as defined in division (A)[(1)] of this section.

 

“Friend” is defined in Ohio Revised Code 313.131(A)(1) as:

“Friend” means any person who maintained regular contact with the deceased person, and who was familiar with the deceased person’s activities, health, and religious beliefs at the time of the deceased person’s death, any person who assumes custody of the body for burial, and any person authorized by written instrument, executed by the deceased person to make burial arrangements.

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