United States: How To Get Rid Of A Dead Body

Those of us who watched AMC's hit drama "Breaking Bad" may recall the scene in the pilot episode where Walt and Jesse set out to dissolve a dead body in hydrofluoric acid. Jesse neglects to take Walt's (the chemistry teacher's) advice to dissolve the body in a plastic container and instead uses a bathtub, only to have the acid melt through the dead body and the tub, and come crashing through the floor supporting the tub, and the floor below that. Here, there is some truth in fiction. Pursuant to Assembly Bill 967, signed by Governor Brown in 2017, the liquification of human remains will be permitted soon, at least for professionals and entities operating a licensed hydrolysis facility where such processes may be carried out. The new law becomes operative on July 1, 2020.

Popular culture and criminal activity aside, this article sets out to summarize the basics of disposing of human remains, covering issues such as who has control over the remains, which laws and documents govern such control, the transportation and disposition of remains, and the removal of remains after burial.

I. STATUTORY AND REGULATORY RESOURCES

The control and disposition of human remains spans numerous statutory and regulatory schemes at the local, state, federal, and international level, depending on the location of death and the desires of the decedent and family with respect to disposition. A person may wish to have his ashes scattered on the white sand beaches of the Caribbean. Another may wish for his body to be transported back to his home country and buried alongside family. No one statutory or regulatory scheme covers every possible scenario. Attorneys and the families of decedents will need to conduct independent research, particularly where the wishes of the decedent, or the wishes of the one in control of the human remains, are not customary.

In most cases legal requirements are regulated at the state level. Statutory schemes in multiple California codes control and regulate the disposition of human remains. Division 7 of the Health and Safety Code, entitled "Dead Bodies" provides numerous statutes relating to the handling of human remains, including such issues as the custody and duty of interment (or burial), the Uniform Anatomical Gift Act, embalming and transportation, and disinterment and removal. Government Code sections 27460 through 27540 prescribe the duties of the coroner, including inquests and autopsies. Health and Safety Code sections 103050 through 103105 govern permits relating to the disposition of human remains such as permits for disposition (section 103065), permits for remains transported into the state (section 103085), and disinterment and removal permits (section 103105).

At the federal level, the Environmental Protection Agency ("EPA") and the Transportation Security Administration ("TSA") have regulations regarding the transportation and disposal of human remains. For example, a non-cremated body or ashes may be disposed of at sea, however, narrow environmental regulations apply. Travel with remains is also regulated by the TSA and private airlines. Lastly, local governmental agencies have ordinances and regulations that may apply to the transportation and disposal of human remains. Many of the permits, death certificates, and other formal documents are obtained at the local county level. This article addresses some of the common issues and concerns that families and attorneys face after a loved one has passed away.

II. THE CONTROL OF REMAINS

A. Who Has Control?

Subject to a decedent's written wishes, the following individuals, in the order listed, have the exclusive right to dispose of the decedent's remains:1

1. The Person Authorized to Direct Disposition (PADD) on a U.S. Department of Defense Record of Emergency Data (DD Form 93) (deaths of military personnel);

2. An agent under a power of attorney for health care under Probate Code sections 4600 through 4806;

3. The decedent's competent surviving spouse or registered domestic partner;

4. The decedent's competent surviving child (or a majority of adult children);

5. The decedent's competent surviving parent(s);

6. The decedent's competent adult sibling (or the majority of adult siblings);

7. The surviving competent adult persons in the next degree of kinship;

8. A conservator of the person;

9. A conservator of the estate; or

10. The public administrator when the deceased has sufficient assets.

Not surprisingly, when the decedent was a victim of murder or voluntary manslaughter and the individual charged with such crimes is the person who has the right to control disposition of the decedent's remains under Health and Safety Code section 7100, that right passes to the person next in priority. 2 Should the charges be dropped or the defendant acquitted, his or her right to control disposition is restored. 3

Parties who dispute the person(s) vested with authority to dispose of remains under section 7100 may petition a court of competent jurisdiction for an order for control of the disposition. 4

If the person with the duty to act under section 7100 fails to act or cannot be found within the statutorily required period of time (7 to 10 days), the right to control the disposition and arrange for funeral goods and services is relinquished and passes to the person next in priority under section 7100. 5 When disputes regarding disposition or funeral arrangements arise between persons with equal priority under section 7100, a petition may be filed in the superior court in the county of the decedent's domicile for the determination of the person who has the control of disposition. 6 The court is required to make an order directing that person to make interment of the remains and setting forth an alternate order of who shall act if the person appointed by the court fails to do so within seven (7) days. 7 In general, the person who has the control of the decedent's remains also has the duty of interment which includes the liability for reasonable interment costs. 8

The authority to dispose of the remains vested under section 7100 is exclusive. For example, there is no right to an autopsy for civil discovery purposes. 9 Further, as discussed below, the person authorized to act under section 7100 has exclusive control over funeral and burial arrangements, including invitees, which may give rise to disputes among the interested parties.

B. What Governs the Control?

So long as the decedent's wishes are not contrary to the coroner's duties set forth in the Health and Safety Code, 10 the person entitled to control disposition must faithfully carry out the decedent's written instructions with respect to funeral arrangements and the disposition of his or her remains. 11 The only legal requirements for the writing are (1) the decedent's instructions clearly and completely set forth the final wishes of the decedent in sufficient detail to preclude any material ambiguity, and (2) arrangements for payment have been made so as to preclude payment by the decedent's survivor(s), if any. 12 If the decedent's instructions are set forth in a will, those instructions are to be faithfully carried out even where the validity of the will in other respects is in dispute. 13 If an indigent decedent has made no provision and the estate is insufficient to provide for interment, no duty of interment is imposed on any person residing in this state. In that case, the coroner of the county in which the person dies may take possession of the remains and dispose of them. 14

When the decedent has not expressed his or her wishes by will or other written direction, the right to control disposition of the decedent's remains and to make funeral arrangements rests exclusively with the decedent's fiduciary and/or certain surviving relatives as described above. 15

III. IMMEDIATE CONCERNS POSTMORTEM

Although dealing with the grief following a person's death is burdensome, many issues must be addressed immediately after death. For example, before a funeral can be arranged, it may be necessary for the coroner to perform an inquest, for an autopsy to be conducted, or for the decedent's wishes regarding organ donation to be honored. Some of the more common, immediate issues following death are addressed here, including anatomical gifts, coroner's inquests into the cause of death, autopsies and other procedures, deaths while abroad, and death certificates.

A. Anatomical Gifts

An anatomical gift is defined under the Health and Safety Code as "a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education." 16 Many of us accurately assume that such a gift can be made to a hospital, accredited medical school, dental school, college, university, or organ procurement organization, for research or education. 17 What is lesser known, however, is that individuals have the right to make an anatomical gift directly to another person. 18 If the decedent has specified the recipient of an anatomical gift, the gift passes subject to the rules set forth in Health and Safety Code section 7150.50, depending on the purpose of the gift. If the anatomical part cannot be used for the named individual, the organ passes to the appropriate eye bank, tissue bank, or organ procurement organization. 19 Additionally, if the gift is not for the proper purpose, i.e., for transplantation, therapy, research, or education, the gift lapses and control of the anatomical part passes to the person under obligation to dispose of the body or part. 20

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Footnote

1 Health & Saf. Code, section 7100, subd. (a); Conroy v. Regents of Univ. of Cal. (2009) 45 Cal.4th 1244, 1255.

2 Health & Saf. Code, section 7100, subd. (b)(1).

3 Health & Saf. Code, section 7100, subd. (b)(2).

4 Health & Saf. Code, section 7105, subd. (d).

5 Health & Saf. Code, section 7105, subd. (a)-(b).

6 Health & Saf. Code, section 7105, subd. (c).

7 Health & Saf. Code, section 7105, subd. (c).

8 One exception to this rule exists for agents under a power of attorney for healthcare. For such agents, the agent is only liable for interment costs where the agent has either specifically agreed to pay the costs or has made decisions concerning disposition that incur costs. Health & Saf. Code, section 7100, subd. (a)(1).

9 Walsh v. Caidin (1991) 232 Cal.App.3d 159, 161.

10 Health & Saf. Code, sections 7100-7117.

11 Health & Saf. Code, section 7100.

12 Health & Saf. Code, section 7100.1, subd. (a).

13 Health & Saf. Code, section 7100.1, subd. (c).

14 Health & Saf. Code, section 7104.

15 Health & Saf. Code, section 7100; Spates v. Dameron Hosp. Ass'n (2003) 114 Cal.App.4th 208, 222.

16 Health & Saf. Code, section 7150.10, subd. (a)(3).

17 Health & Saf. Code, section 7150.50, subd. (a)(1).

18 Health & Saf. Code, section 7150.50, subd. (a)(2).

19 Health & Saf. Code, section 7150.50, subds. (b), (g).

20 Health & Saf. Code, sections 7150.40, subd. (a), 7150.50, subd. (i).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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