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Rights To Disinterment


     After a body has been buried, it is considered to be in the custody of the law; therefore, disinterment is not a matter of right. The disturbance or removal of an interred body is subject to the control and direction of the court.

     The law does not favor disinterment, based on the public policy that the sanctity of the grave should be maintained. Once buried, a body should not be disturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing of necessity that disinterment is within the interests of justice. Each case is individually decided, based on its own particular facts and circumstances.

     The courts frequently allow a change of burial place in order to enable people who were together during life to be buried together, such as husbands and wives, or family members. Disinterment for the purposes of reburial in a family plot acquired at a later date is generally authorized by law, particularly if the request is made by the surviving members of the decedent's family.

     Disinterment may be allowed under certain circumstances, such as when a cemetery has been abandoned as a burial place or when it is condemned by the state by virtue of its EMINENT DOMAIN power for public improvement.

     Consideration of the deceased's wishes as to his or her burial place is instrumental in a decision of a court as to whether or not a body should be disinterred. Such wishes are of paramount importance but are not necessarily controlling in all cases, such as when subsequent circumstances require a change of burial.

     In states that have statutes regulating the exhumation or removal of the dead, such statutes are controlling.

     Purchasing a lot in a cemetery entails a contract that obligates the purchaser and his or her survivors to abide by and observe the laws, rules, and regulations of the cemetery as well as those of the religious group that maintains it. When a dispute over the right to disinter a corpse arises, the court must make a finding of fact as to whether or not the rules or regulations of the cemetery forbid it.

     Rights of Particular Persons to Disinterment The surviving spouse or next of kin of a deceased person has the right to let the body remain undisturbed. This right, however, is not absolute and can be violated when it conflicts with the public good or when the demands of justice require it.

     Also, the right to change the place of burial is not absolute, and the courts take various factors into consideration when deciding whether a body should be removed for burial elsewhere, such as the occurrence of unforeseen events. If an elderly woman's husband died and was buried in New York and she subsequently moved to California, she might be allowed to have his remains removed to a different location to facilitate her visits to his grave.

     The consent of the surviving spouse of a decedent to the decedent's original resting place is another factor that the court will consider in determining whether a body may be disinterred, particularly if it is against the wishes of the next of kin. Once consent has been shown, the burial will usually not be disturbed in the absence of strong and convincing evidence of new and unforeseen events.

     If a body is improperly buried—that is, buried in a grave belonging to someone else who has not consented to the burial—the court will order the body removed for reburial.

     A landowner who allows the burial of a deceased person on his or her property cannot later remove the body against the will of the surviving spouse or next of kin. On the other hand, the landowner is entitled to object to the removal of the remains from his or her land. A landowner may not assert that a burial was made without his or her consent if he or she fails to raise any objections within a reasonable time after the interment of the decedent.

      Disinterment for Autopsies The disinterment of a body may be ordered by the courts for the purpose of an autopsy. Courts may permit a body to be exhumed and an autopsy to be performed under certain circumstances in order to discover truth and promote justice. If disinterment for the purpose of examination is to be allowed, good cause and exigent circumstances must exist to make such action necessary, such as controversy over the cause of death, or to determine in an heirship proceeding whether or not a decedent ever gave birth to a child.

      Disinterment for an autopsy should not be granted arbitrarily. The law will only search for facts by this method in the rarest of cases and when there is a reasonable probability that answers will be found through disturbing interment.

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