- As I have previously written, NJ law allows individuals to make their own funeral and/or burial arrangements in a will, or designate a personal representative to make those decisions.
- These laws ensure that funerals and disposition of remains are in accordance with the wishes and desires of the decedent.
- When a dispute over a dead body goes to court, the court’s duty [is]… “to ascertain and give effect to the probable intention of the deceased person.”
NJ Laws on Funeral and Burial Arrangements
The court will carefully consider which next-of-kin of equal standing under the statute will likely control the funeral and/or disposition of remains in a manner that most closely reflects the wishes, desires and expectations of the decedent.
It follows, therefore, that evidence of the wishes, desires and expectations of the decent, with regard to funeral arrangements and/or disposition of remains, will help guide the court in appointing control to the next-of-kin of equal standing who would most likely abide by those wishes, desires and expectations to the extent possible. To that end, if available, the court should consider any evidence of communications, written or otherwise, between decedent and others that express the decedent’s wishes, desires and expectations for funeral arrangements and/or disposition of remains. Often times, the adversaries are (or were) close family members (i.e., brother, sister, parent, child, second spouse and stepchildren). A court will evaluate relationships between the decedent and next-of-kin of equal standing. These relationships are highly relevant. The courts give primacy to the closeness of relationships in cases involving decisions regarding burial. The order of persons to be granted control over a dead person’s remains under N.J.S.A. 45:27-22 is dependent on the closeness of their kinship. The nature of relationships between the decedent and the person granted control of the funeral arrangements and disposition of remains is an important factor to consider, as persons with a closer relationship to the decedent are more likely to be in a better position to know of the decedent’s desires or expectations upon death.
Further, the religious and/or cultural background of the decedent should also be considered. The law recognizes the importance of religious affiliation in the disposition of remains. As the intent of the statute focuses on the wishes of the decedent, the decedent’s religious beliefs and/or cultural practices, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, assists the court as to the decedent’s reasonable expectations upon death. Accordingly, to the extent the court finds that religious beliefs and/or culture practices are relevant to the matter, consideration should be given as to which next-of-kin of equal standing would be more likely to abide by the religious and/or cultural practices of the decedent.
While the wishes and desires of the deceased are most relevant to the court’s analysis on the selection of the person to control the funeral arrangements and/or disposition of remains, there are other considerations as well. New Jersey law recognizes obligations of administrators of estates.
A “best interests of the estate” analysis may be necessary to resolve a dispute between next-of-kin of equal standing, as the cost of a funeral and/or disposition of remains sought by a party may or may not be affordable to the estate. In that instance, the source of funding to provide for the funeral and/or disposition of remains may be the paramount consideration. For that reason, the court may consider, if known, which next-of-kin of equal standing will ultimately be designated as the administrator of the estate, as that person will be obligated to act in the best interests of the estate to protect the estate’s assets and ensure payment for funeral and/or disposition expenses.
The general rule in NJ is that where next-of-kin of equal statutory standing find themselves in dispute over funeral arrangements and/or disposition of remains, the court should consider the following factors when selecting the person in control under N.J.S.A. 45:27-22:
1. Which next-of-kin of equal standing is more likely to abide by the wishes and desires of the decedent as expressed through communications with another, to the extent the decedent made those communications;
2. Which next-of-kin of equal standing established a closer relationship to the decedent, and is thereby in a better position to surmise the decedent’s desires and expectations upon death;
3. Which next-of-kin of equal standing is more likely to adhere to the religious beliefs and/or cultural practices of the decedent, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, and to the extent that those beliefs and practices are relevant to inform the court as to the wishes, desires and expectations of the decedent upon death; and
4. Which next-of-kin of equal standing will ultimately be designated administrator(s) of the estate and act in the best interests of the estate to: (a) determine the costs, funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains (i.e., locating funding from other next-of-kin, charities, fraternal organizations, religious institutions, governmental agencies, etc.).
When rendering its decision, the court should conduct a qualitative analysis of each factor, giving due weight to each as appropriate.
To discuss your NJ probate litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County NJ Probate Litigation Attorney