Should a Person’s Remains Be Considered Property?

Category: Estate Planning

 Should a Person’s Remains Be Considered Property

When you think about estate planning and naming beneficiaries, you probably think about items like your house, your car, bank accounts, stocks, record collections, and so on. Things that you own because you have acquired them through your hard work and purchasing power. Things that are your property.

But what about your body? After you die, should your remains be considered a piece of property?

That’s the question that a divorced couple in our state recently asked a Palm Beach County court to answer about the ashes of their 23-year-old son, Scott Wilson. The father, who wanted to divide the ashes in half so he could place his portion in a family burial plot in Georgia, argued that they should be declared property. But the mother, who wished for all of the ashes to be buried in Florida for religious reasons, disagreed. It’s a question that had been in debate in Florida probate court since 2010 until an appeals court upheld the ruling this past May that remains cannot be considered property.

Unfortunately, this ruling was only about splitting up the remains, so now the parents are locked in another contentious legal battle over who gets the ashes of their son in their entirety. It’s a sad, painful situation for everyone involved, and one where it’s easy to understand both sides: these estranged parents simply want to be near the mortal remains of their deceased boy.

Perhaps even worse, it’s also a situation that could have been easily resolved if their son had created a will detailing what he wanted to happen to his body after he was gone.

Estate Planning Is About the People You Leave Behind

Florida Estate Planning Lawyer

The thing about estate planning is that it is a process that largely isn’t about you – it’s about the loved ones who will still be around after you’ve passed away. It’s also requires thinking fairly deeply about the future.

Because of this, you can understand why a 23-year-old wouldn’t have a will in place. At that age, you’re still trying to figure out what you want out of life – not how you want to leave and what you want to happen after you’re gone. There was no way that Scott could have known that a drunk driver was going to take his life, so how could he have known to plan for it?

That, however, is exactly the point. Life has strange twists and turns for all of us, and if we don’t want to put our loved ones through more trials and tribulations after we’re gone, the best parting gift we can give is to have a plan in place.

What can a will do?

Name an executor. This is the person you designate to carry out your last wishes. What does that mean? Essentially they’re responsible for making sure that everything you detail in your will actually happens – within reason, of course. When choosing someone, make sure that they are both able and willing to do the job.

Make final plans for your body. Do you want to be buried or cremated? Are you religious? What kind of service do you want? Would you like your remains to be placed in a specific place? Donated to science? This is where you detail what you want to happen to your remains.

Decide who gets what. It doesn’t matter if you’re a billionaire with lots of money and assets in various places or a 23-year-old like Scott who is just starting out and probably didn’t have a large estate. Chances are good that you still have some assets important to you, and if you really think about it, you’d rather that they go to a specific person than be divvied up in court without your input.

Protect your kids. If you have minor children, you can name a guardian in your will so you know they will be taken care of. Additionally, anyone leaving assets to kids or young adults may wish to name someone to manage what they inherit until they reach the age where you feel comfortable that they can handle the responsibility.

No one wants to think about dying, especially if you’re still young, but having a will in place ensures that your loved ones will not be put in the awkward and potentially painful place of trying to figure out what you would have wanted.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.