Probate, trust, guardianship and inheritance litigation
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Who Decides Whether to Cremate Someone Under Arizona Law?

A 2020 case from Arizona addresses how the decision whether to cremate someone can be made under Arizona law.   The case of In Re Remains of Ghostley, 458 P.3d 116 (Ariz. Ct. App. 2020) involved a dispute between Mr. Ghostley’s mother and father about who gets to decide whether to cremate in the event of a family dispute, and how the decision is made.

Mr. Ghostley passed away in 2018 at the age of 30, unmarried.  His mother and father were divorced.  His father wanted to cremate Mr. Ghostley, while his mother wanted him buried.

Arizona Law Sets Forth How Burial Decisions are Made

Arizona Statute Section 36-831 sets forth an order of priority about who is authorized to determine burial arrangements of a deceased person, as follows:

36-831. Burial duties; notification requirements; failure to perform duty; veterans; immunity; definitions

A. Except as provided pursuant to subsection I or J of this section, the duty of burying the body of or providing other funeral and disposition arrangements for a dead person devolves in the following order:

1. If the dead person was married, on the surviving spouse unless:

(a) The dead person was legally separated from the person’s spouse.

(b) A petition for divorce or for legal separation from the dead person’s spouse was filed before the person’s death and remains pending at the time of death.

2. On the person who is designated as having power of attorney for the decedent in the decedent’s most recent health care power of attorney pursuant to chapter 32, article 2 of this title if that power of attorney specifically gives that person the authority to make decisions regarding the disposition of the decedent’s remains or a durable power of attorney if that power of attorney specifically gives that person the authority to make decisions regarding the disposition of the decedent’s remains.

3. If the dead person was a minor, on the parents.

4. On the adult children of the dead person.

5. On the dead person’s parent.

6. On the dead person’s adult sibling.

7. On the dead person’s adult grandchild.

8. On the dead person’s grandparent.

9. On an adult who exhibited special care and concern for the dead person.

10. On the person who was acting as the guardian of the person of the dead person at the time of death.

11. On any other person who has the authority to dispose of the dead person’s body.

The discretion given to the authorized decision maker is not absolute.  Arizona Statute 36-831.01 provides the following guidance and limitations on the ability to cremate under Arizona law:

36-831.01. Disposition of remains; duty to comply with decedent’s wishes; exemption from liability

A. If the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.

Arizona Probate Court Resolves Burial Decision Where Persons With Authority Disagree

The order of priority in the case indicated that Mr. Ghostely’s parents should decide.  But because they disagreed about whether or not to cremate, the court was left to decide what to do under Arizona law.  As explained by the appellate court:

Under such circumstances, A.R.S. § 32-1365.02(J) authorizes “a court of competent jurisdiction” to resolve disputes between persons listed in § 36-831(A) “concerning the right to control the disposition, including cremation, of a decedent’s remains.” Here, the probate court understood this statutory role as including the power to referee the underlying dispute between Mother and Father.

We conclude that this broad language, read in the context of the statutory scheme and the pertinent legislative history, authorizes trial courts to resolve the merits of underlying disputes between litigants of equal statutory standing.

In order to resolve the dispute, the trial court relied on the language in Arizona Statute 36-831.01 requiring the court to determine the decedent’s wishes and whether there would be economic or emotional hardship.

Before conducting fact-finding, the probate court was confronted with a legal question that is not expressly resolved by the statutory scheme: how should a decedent’s remains be disposed when the decedent’s wishes, if followed, would impose some emotional hardship on an authorized decision-maker? Section 36-831.01(A) provides that the decedent’s wishes must be followed “if they are reasonable and do not impose an economic or emotional hardship.” But it does not further define what constitutes hardship, nor does it address whether such a hardship necessarily overrides a decedent’s wishes.

The mother claimed that cremation would cause her emotional hardship.  The father and the Decedent’s girlfriend testified at trial that the Decedent stated that he wished to be cremated.  In resolving these competing factors set forth under Arizona law, the appellate court reasoned as follows:

By its very title, “[d]isposition of remains; duty to comply with decedent’s wishes . . . ,” § 36-831.01 suggests a decedent’s wishes take priority in the determination of disposition of final remains. § 36-831.01 (emphasis added); see State v. Barnett, 142 Ariz. 592, 597 (1984) (although “headings are not part of the law itself, where an ambiguity exists the title may be used to aid in the interpretation of the statute”). And, the statute plainly instructs that parties shall comply with a decedent’s reasonable wishes, absent emotional or economic hardship, establishing a presumption that a decedent’s wishes should be followed.

In resolving the dispute on whether or not to cremate the remains under Arizona law, the appellate court reasoned as follows:

This context compels the conclusion that a party’s distress concerning the disposition of a decedent’s remains, however sincere, constitutes an “emotional hardship” only when it is sufficiently weighty to overcome the statutory presumption favoring a decedent’s wishes. And, such a showing of hardship merely authorizes, but does not require, the decision-maker to override the decedent’s wishes. See § 36-831.01(A) (implying option of overriding decedent’s wishes but stating no requirement to do so).

Although the record certainly reflects that Mother was upset at the prospect of her son’s remains being cremated and divided, the record contains substantial evidence to support the court’s determination that this distress was not sufficient to outweigh her son’s wishes. Mother testified that her distress stemmed primarily from her professed religious beliefs, the sincerity of which we do not purport to question here. However, even assuming the probate court credited Mother’s testimony, nothing compelled the court to elevate Mother’s religious beliefs above the wishes of her son. Notably, the record reflects that decedent was also religious, and his own spiritual beliefs could have played a role in his decision to be cremated. Therefore, we cannot say that on the record before us the court erred in failing to find Mother’s distress, and its basis, sufficient to constitute emotional hardship cognizable under the statute.

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