Who Has Rights To Ashes After Cremation?

Knowing who is responsible for taking possession of the deceased’s ashes is essential to avoid conflicts. Most times, it’s obvious who the person responsible will be. 

The rights to the ashes after a cremation would go to the closest relative or an executor if the person that passed away did not have family members. Family disputes over cremated remains are rare but do happen, and the government cannot always jump in.

At times, the issue is a typical scheduling disagreement. Or there can also be a problem if the dearest person to the deceased is not one of the blood relatives.

Is it possible for any individual to collect ashes from a funeral home or a crematorium?

The law states that the closest living relatives or the executor that the deceased person appointed in their will can take the cremated ashes from the crematorium. 

If no will was left behind, the privilege goes to the spouse or the next person in the family hierarchy. In some cases, the person who passed away doesn’t wish for any relatives to gain possession of their remains. If this is the case, the deceased person’s family is not allowed to collect ashes.

Laws vary in every state, but if you are wondering how to determine if you have a right to the human remains of your family member, this guide will help you.

We’ve done some thorough research and are confident all your questions regarding your rights in this situation will be answered.

Laws For Picking Up Cremated Remains In America

Unfortunately, the fact is that nearly 50% of Americans over 55 still don’t have a will set up in the event of their demise. Because of this inability to plan for the worst, the surviving spouse and other relatives are left behind to argue over assets and who can take the cremation ashes.

It’s an event that doesn’t need to happen if everyone had a will set up in advance. And when they pass away, their loved ones can focus on the grieving process. Sadly, most people don’t do this whether they have a little money or a small fortune.

Who Takes Charge When Family Members Die Without A Will?

If a married person dies without setting up a will with their lawyer, the spouse or life partner has the authority necessary to claim the ashes. However, not everyone who dies has a wife and next of kin. 

In a rare case like this, they will go down the list of anyone who knew the deceased willing to find a final resting place for a friend.

Below is the order from top to bottom of who has the right to collect ashes:

  • The executor appointed by the deceased person in their will
  • Surviving spouse
  • Surviving children
  • Living grandchildren
  • Mother or father of the deceased
  • Blood-related siblings
  • Blood-related nephews and nieces
  • Living grandparents
  • Anyone else connected to the deceased wanting to take on the responsibility of managing the estate

If you were adopted as a child, it’s valuable to know that you have the same next of kin rights as someone biologically related to the deceased person. In the eyes of the law, you are seen as equals. The same goes for adoptive families if a person they adopted passes away.

Next of kin can relinquish their rights if they have a solid logical explanation for their actions. A good case scenario would be if the grief were so heavy that it rendered them incapable of managing the events after the passing of a loved one. 

All they have to do is call the law firm and have their executor status revoked.

Problems Over Hereditary Rights To Cremated Ashes

American federal law states the living spouse must prepare their deceased partner’s dead body and make all the funeral arrangements. Sometimes the spouse prefers not to be in charge, but it’s the ideal legal scenario.

The issue is this is a very personal matter for people from some cultures, and they don’t always agree with the law about who gets to manage the cremation process and the remains of their kin. 

Many other problems arise after someone dies. For example, if a child passes away and the parents are legally divorced, they will sometimes argue over what to do with the remains. 

Another scenario would be if a parent meets their demise but doesn’t assign an executor with a will, then there will be a dispute over who has the legal right to keep the estate and ashes.

Also, when an executor is appointed, it’s their responsibility to make arrangements with the funeral director and choose where the remains will be buried. But other next of kin might not agree with this and file a dispute, which delays everything and burns bridges with loved ones.

The executor’s job is to follow the guidelines stated in the will. Following the family’s wishes is not on their agenda. I

f the deceased does not clarify where they want to be buried, the family is restricted by the rules of the hierarchy, which may not always be reasonable. Since courts of law prefer not to get in the middle, the most thoughtful way to handle this scenario is to be civil and find a way to negotiate with the executor instead of arguing.

Additionally, even if a bill remains outstanding, the funeral director must still release the ashes by law. They must follow the wishes of the deceased and collect the funds from the person mentioned in the contract to pay for the cremation if they are still alive.

Problems always float up to the surface when kin have disagreements, and finding a middle ground is not always possible. But if no conflicts arise regarding the final resting place of the human remains, it’s smooth sailing from there.

Always remember that every family is not the same, and the situation they face when someone dies will be unique. 

In a worst-case scenario, they can file a waiver with a lawyer to state the appointed executor is mentally incapable of performing their duties or is taking too long. These waivers are not easy to enforce but are worth a shot. 

The goal for every person involved is to come up with a mutually agreeable solution so they can focus on grieving instead of bickering and wasting money on attorneys.

What Happens If No One Picks Up The Ashes

Across the North American continent, there are 23000 funeral homes, and they all have the same problem when people don’t collect their loved one’s ashes. 

Some reasons for this are the inability to decide what to do with the ashes, family disagreements, or because some people are forgotten when they pass away.

Common law in the United States requires a funeral home must keep the ashes stored for 4 years before they can discard them. After 4 years pass and no one comes to pick up the remains, most will scatter ashes wherever they are legally allowed. 

If anyone comes after this happens, the funeral parlor is obligated to keep records and will know where the ashes were scattered.

It does not often happen, but if the bill is unpaid by this point, the funeral home still has the right to charge the deceased’s family whatever is due. 

Funeral directors could take legal action against a family member even if the ashes were never collected so they could get paid for their time and work.

Are Human Remains Considered Property?

Remaining calm and finding a mutual but fair agreement is the best strategy to take during a dispute after the passing of a loved one. 

Human bodies are not a form of property and are not owned by anyone in the family. No matter what, the final say goes to the executor when they gain possession of the ashes, and they can choose the burial spot with a willing next of kin if they are amenable to it.

Best Strategy to Handle Disagreements Over Collecting Ashes

Talking to each other respectfully and hearing everyone out is the ideal way to handle a dispute during this time. 

By meeting in the middle, you can conserve money and time, and not ruin good relationships. If you follow this strategy, you also honor the deceased and send them off with dignity.

Best Way To Communicate

Losing a loved one will make anyone lose their cool and the ability to make rational decisions like what funeral home to choose or what to do with the ashes. 

To make everyone feel in control and valuable, you can share responsibilities and give them a say in what happens to the deceased. The key is to communicate openly throughout this process. 

The benefits include giving you help so you can feel less overwhelmed, and all involved will feel more comfortable sharing their feelings.

While working together and making funeral arrangements and you disagree with something, express yourself on the spot respectfully and don’t wait. 

If you keep a feeling like this inside, it will only lead to an argument in the future. If addressed respectfully, others are more inclined to understand and include you to help you feel better.

The last option should be to hire an attorney to sort out a problem. You should first try everything we suggest, and if our negotiation tactics still don’t work, you can take the legal route, but it won’t be cheap. 

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