Legal Considerations of Cremation Jewelry
The need for self-immortalization has been a constant theme throughout history, dating back prior to the Egyptians. Preserving one’s self for future generations has lead to interesting and creative burial methods. These methods have varied throughout history, but a person’s desire to be remembered has remained the same. Cremation jewelry gives the decedent an opportunity to become an heirloom and be passed down through the generations. This new technique has not only allowed for self-preservation, but also as a means of keeping a loved one close. You cannot get closer to your deceased relative than to wear them around your neck.
II. Cremation Jewelry: The Process and Options
“Cremation Jewelry is, simply put, jewelry that contains some of the cremated ashes of a deceased family member or loved one.”[i]With the rise and acceptance of cremation in society, cremation jewelry has become an important contribution to the memorial industry.[ii]Descendants can use cremation jewelry jointly with the more traditionally accepted memorials, such as urns.[iii]For example, some will store most of a decedent’s ashes in a traditional way and use a small portion of the ashes to include a long-distance relative.[iv]
One option is the cremation memorial pendant.[v]Cremation pendants contain the remains of a loved one and come in different styles and designs.[vi]Some of the pendants are capable of holding a photo and families can even choose to have some of the pendants engraved.[vii]The pendants range in materials from glass, crystal, sterling silver, or 14kt gold.[viii]Although the creators of cremation jewelry make the actual pendant, the filling of the cremation jewelry with the remains is up to the person who requested it.[ix]
One of the more unique options for cremation jewelry is to have the cremated remains turned into a diamond. The process for cremation diamonds can take up to six months or more depending on the size of the diamond desired.[x]Additionally, these diamonds can also be created from a lock of hair from your loved one.[xi]Family members can also choose to add color to their diamonds.[xii]The only downside to cremation diamonds is their price tag. The smallest option available (.10-.19 carats) is $2,490 each.[xiii]To get a full carat diamond from the remains of a loved one, the price will be approximately $13,000.[xiv]The diamonds will have flaws similar to a natural diamond and the creators rate them based on the same clarity ratings as diamonds.[xv]After having received the diamond, the requestor can choose to place their diamond in any setting of their liking, such as a pendant or a ring.[xvi]
In addition to cremation jewelry, family members can choose to have their loved one turned into cremation art.[xvii]These pieces of art incorporate a small amount of the remains into the painting and “an earth-friendly compound is added to the paint and cremated ashes.”[xviii]There is a wide range of colors that your painting can incorporate. Once a family member has placed an order for a cremation painting, a small gathering kit is sent to collect the ashes.[xix]Once the painting is finished it is sealed and framed and arrives ready to hang, which includes a Certificate of Authenticity from the artist.[xx]
III. Part II: Decedent’s Rights versus Survivor’s Rights
A. Order of Rights
In determining when and how to order cremation jewelry it is important to discuss who has the rights to the decedent’s remains. Family members may have differing positions over how to dispose of a loved one and the state statutes will help to determine who has the first right to decide, especially in cases where the decedent has died without a will. In fifteen states, there are statutes that create a list of persons who have power over the deceased person’s remains in order of their rights.[xxi]
In Arthur v. Milstein, plaintiffs brought an action in order to decide who had the right to control the disposition of decedent’s remains.[xxii]Virgie Arthur, mother of Anna Nicole Smith, asked the court to reconsider the trial court’s order that granted Dannielynn Hope Marshall Stern’s (daughter of Anna Nicole Smith) the “sole right” to decide how her mother should be disposed.[xxiii]The court cited to the Florida Probate Code section 732.103, which provides the following:
The part of the intestate estate not passing to surviving spouse under section 732.102, or the entire intestate estate if there is no surviving spouse, descends first to the lineal descendants of the decedent, and if there is no lineal descendant, to the decedent’s father and mother equally, or to the survivor of them.[xxiv]
The court also considers how the common law handles right to disposition. “In the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition.”[xxv]The court explains that the remaining persons allowed to control the disposition are those who are presumed to know the desires of the decedent and will follow those requests.[xxvi]The state statute incorporated the common law rules and the court ruled in favor of Dannielynn, who followed her mother’s last request.[xxvii]
In Booth v. Huff, an action was resolved concerning the right to control the disposition of cremated remains of Ronald Booth.[xxviii]The court stated that “generally, the surviving next of kin have a right to the immediate possession of the decedent’s body for preservation and burial.”[xxix]However, the court will take into account the decedent’s last requests when resolving a dispute over the disposition of the remains.[xxx]In this case, the court said that there were issues of fact regarding the decedent’s wishes regarding disposition, which meant that the summary judgment decision was not appropriate.[xxxi]
On the other hand, when the deceased has unmistakably expressed their requests concerning the disposition of their remains, the court will consider those wishes very seriously.[xxxii]For example, the Revised Code of Washington section 68.50.160 states, “a person has the right to control the disposition of his or her own remains without the predeath or prodeath consent of another person.”[xxxiii]A court will deem a document as “sufficient legal authorization” for the disposition of their remains, if a decedent has signed a written request for disposition in front of a witness.[xxxiv]Furthermore, if the decedent has already arranged for the disposition of their remains, then their descendants may not terminate those arrangements or make “substantial revisions.”[xxxv]
In conclusion, cremation jewelry may be a controversial topic for the family members. If there is a dispute between the descendants about what to do with the body, then it will become important to know who has the rights to decide according to the statute. These statutes provide particular significance when the decedent died intestate, i.e. without a will. In addition, cultural feelings dictate that we should follow the desires of the decedent; therefore, if a person would expressly like to become a part of cremation jewelry, then to avoid any future disputes, there should a carved out section in the will dedicated to this point.
B. Conflict of Interests
Unfortunately, conflicts regarding the disposition of a loved one’s remains are fairly common between family members.[xxxvi]When emotions are running high, conflicts are bound to arise. “Some of these disputes are highly publicized because of the deceased’s identity.” The courts have handled these disputes differently depending on the state and jurisdiction.[xxxvii]Family members may debate over the decision to receive cremation jewelry; therefore, it is important to inquire into who has the decision to order the jewelry.
One of the more public disputes involved Ted Williams, a famous Boston Red Sox Player, who died in 2002.[xxxviii]Williams’ son, John Henry, and his daughter, Claudia, pushed for their father’s body to be cryogenically preserved.[xxxix]Williams’ body and head were stored separately in liquid nitrogen after surgeons surgically removed his head.[xl]“Williams’ eldest daughter, Bobby-Jo Williams Ferrell, had fought against the process, saying that that her dad had asked and requested in his will to be cremated and his ashes, scattered off the Florida coast.”[xli]However, a handwritten note signed by John Henry, Claudia, and Ted Williams stated that they all wished to be put in “biostatis” after death.[xlii]Bobby-Jo Williams Ferrell sued to have her father’s wishes recognized, but ultimately dropped it after the family pact signatures were proven genuine.[xliii]The court will usually defer to the decedent’s wishes with regard to the disposition of his remains.[xliv]
Another example of a public debate came with the discovery of Gary Coleman’s private will, which his Diff’rent Strokes co-star Todd Bridges brought to light.[xlv]He had become alienated from his mother and father following a fight over his finances in 1989.[xlvi]The will excludes Coleman’s parents who would prefer that no will be produced, because without a will his parents will likely receive a portion of Coleman’s estate.[xlvii]A Utah District Judge selected a lawyer to be the administrator of Coleman’s estate and announced that Coleman’s remains will be stored until he makes a final decision regarding the executor of Coleman’s estate.[xlviii]The battle between the executors is now between Anna Gray, who the private will named as executor, and Price.[xlix]The court will consider the decedent’s wishes when trying to decide what to do with the remains, as well as the circumstances surrounding his life and death.[l]
Another way the courts have handled disputes between family members is to split the cremated remains among the descendants. In Kulp v. Kulp, as mentioned above, a divorced couple fought over the remains of their child’s remains.[li]The trial court ordered that the “remains of the deceased son…be divided into two separate urns, and allowed each party to place their urn at the site of his/her choice.”[lii]The court held that trial courts have permission to order division of remains; however, the husband in this case appealed the decision to do so.[liii]This issue is in a controversial area and when one of the survivors believes that the decision to split the remains is offensive, the court should consider those beliefs.[liv]Therefore, the trial court abused its discretion in this case.[lv]
In order to plan for the disposition of a loved one, it is crucial to determine who has proper authority to control the remains. Disputes among family members over the disposition of the remains are unfortunately very common.[lvi]The courts have handled these disputes in a number of ways, including considering the feelings of both the deceased and their survivors, even if those wishes are a little unorthodox (cryogenics or cremation jewelry). If the parties are amenable to the decision, then the courts will also allow the remains to be split among the survivors of equal status.
Cremation jewelry, although a rising trend, may be offensive to some of the family members. It is important to figure out who has the right to determine what to do with the remains of the body in order to establish the right to select cremation jewelry as the final disposition. In addition, a family member could choose to send cremation jewelry to those who are not a part of the funeral as a way to soothe the tension between the family members with regard to disposition rights. If the court allows for the split of the remains, then multiple family members could decide to have their loved one turned into jewelry.
C. Ownership of the Deceased
“Whether the human body may be classified as property under the law has long been a subject of debate, in part because characterizing a body as property has moral implications.”[lvii]In Enos v. Snyder, the court stated that in “absence of statutory provisions, there is no property in a dead body, that it is not part of the estate of the deceased person, and that a man cannot by will dispose of that which after his death will be his corpse.”[lviii]However, the courts needed a way to recognize the right of a survivor to dispose of the deceased, which lead to a recognition of “quasi-property” rights.[lix]
The courts established this concept of “quasi-property” rights in order to settle the kind of rights that the survivor of the decedent may claim to the remains.[lx]“The right to possession of the body corresponds with a duty to dispose of the body.”[lxi]Therefore, “quasi-property” rights began with the duty to bury the deceased.[lxii]In Pettigrew v. Pettigrew, the court stated the following:
When a man dies, public policy and regard for the public health, as well as the universal sense of propriety, require that his body should be decently cared for and disposed of. The duty of disposition therefore devolves upon someone, and must carry with it the right to perform. . . [T]here is a legally recognized right of custody, control, and disposition, the essential attribute of ownership, I apprehend that it would be more accurate to say that the law recognizes property in a corpse, but property subject to a trust.”[lxiii]
In sum, the descendants of the deceased posses the right of disposition, no matter how the courts decide to deem that right—as “quasi-property” or just a duty of burial.[lxiv]
In Arthur v. Milstein, as mentioned above, the plaintiffs filed suit to determine order of control over decedent’s body.[lxv]The court reaffirmed the principle that the next of kin has the right to control the body for burial purposes or other dispositions.[lxvi]In addition, the court stated that “many courts have announced the rule that a person has the right to dispose of his own body by will.”[lxvii]The court defaulted to the decedent’s last request as to the proper disposition of the deceased and restated that her daughter had the right to determine the lawful disposition of her remains.[lxviii]
In Arkansas Board of Embalmers and Funeral Directors v. Reddick, the Board of Embalmers and Funeral Directors suspended a funeral director’s license to which he sought judicial review.[lxix]Reddick had the deceased execute a power-of-attorney because he knew the decedent after working with him as his pastor.[lxx]The board claimed that Reddick violated the following rules of Embalmers and Funeral Directors:
(1) remov[ing] the body of the deceased from the hospital to the funeral home without first obtaining authorization from the family and without authority of the arrangers; (2) without authorization of the family [going] to the home of the deceased and remov[ing] papers, jewelry, and clothing; (3) [failing] to explain to the family members that [the deceased] had an insurance policy, etc.[lxxi]
The court held that upon the death of the deceased, it her next of kin had the right to decide the disposition of the deceased’s remains.[lxxii]
Additionally, the court recognized in Reddick that the next of kin has a “quasi-property” right because of their duty of burial.[lxxiii]This right allows for the control over the deceased for burial purposes or relocating the body to its final resting spot.[lxxiv]Furthermore, if the surviving spouse fails to timely assert their right to control the deceased’s remains, then the care of the deceased passes in accordance with the disposition rights.[lxxv]Therefore, the next of kin in this case had a right to the deceased and Reddick overstepped his authority.[lxxvi]
This “quasi-property” right is for the purposes of burial or other lawful disposition.[lxxvii]Most courts have held that the right to possess the remains ends after the lawful disposition has taken place.[lxxviii]After the cremation, one could argue that lawful disposition of the remains has taken place and the rights to the remains have ended, except for placing the remains in their final resting spot. Cremation jewelry uses a small portion of the ashes and places them into the jewelry requested. By placing the ashes in the jewelry, does that constitute a final resting spot? If the placing of the ashes into the cremation jewelry ends the ownership right to the ashes, how does one claim ownership of the jewelry?
One argument is that the ownership of cremation jewelry continues after the family member places the ashes in the jewelry. This position becomes especially important when referencing cremation diamonds and cremation jewelry because the ashes of a loved one are actually transformed into a diamond or placed into a valuable item of jewelry. One could claim that they have met their legal disposition because they have been placed in their final resting spot. However, the ownership of the diamond or jewelry should continue for the owner despite the fact that they have reached their final resting spot, given that they have maintained possession of the remains. The family member requesting the diamond or jewelry should have a priority in comparison to anyone else. In addition, this position will help the courts to decide who has ownership of the jewelry, even if the jewelry is ever lost or stolen.
IV. Part III: The Right to Sue
A. Tort Analysis
Unfortunately, in dealing with the fragile remains of a loved one there are the occasional accidents or wrongdoings. When this situation arises and a family member decides to sue, courts have had to decide how to treat these causes of action. Some courts analyze the “right in survivors not as a ‘quasi-property’ right, but instead through the tort of emotional distress.”[lxxix]When a victim suffers from emotional grief after the remains of their loved one has been interfered with or disturbed, this tort can result.[lxxx]
In order to bring this type of cause of action, it is necessary to possess control over the disposition of the remains.[lxxxi]Some courts do not follow this restriction because they recognize that family members, who do not possess control, could also suffer from the interference or disturbance of their loved one.[lxxxii]However, no court has gone as far as allowing this claim to be brought by someone outside of the family.[lxxxiii]Instead, the courts have redefined the meaning of a family member in order to encompass those who could suffer the same mental anguish.[lxxxiv]
Recognizing tort liability has enabled the courts to get around labeling the remains as property or even “quasi-property,” while still giving family members access to the court systems.[lxxxv]Those that follow this idea believe that labeling a body as a kind of property right is worthless because bodies cannot be bought, sold, transferred, or assigned, which completely defies the entire meaning of property.[lxxxvi]Therefore, tort theory could encompass the survivors’ rights without creating an artificial reliance on a “quasi-property” theory.[lxxxvii]Although, similar to “quasi-property,” “tort liability will not give the decedent the legal right to dictate his disposition before his death.”[lxxxviii]This could lead to further restrictions on the decedent because funeral homes would be unwilling to deal with the decedent without some sort of additional consent from the descendants, because they would have the right to sue.[lxxxix]
If a family member were to order a cremation diamond or even cremation art, then the family member must ship a small part of ashes to the company in charge. If the company loses the ashes, or the shipping company has some sort of problem in transit, then can a family member sue for emotional distress? According to some courts, the answer is probably. These courts would prefer that the family members sue for emotional distress, rather than claim that they had ownership to the remains and that they were deprived of those ownership interests. In this regard, the courts can escape the moral dilemma of classifying remains as property. The courts would have to struggle with the issue of mental anguish when it comes to a wrongdoer thieving the jewelry.
B. Potential Causes of Action
The court systems have handled the ways to sue in a variety of manners. Some courts stick to the “quasi-property” theory and allow for a legitimate claim of entitlement, which gives the survivors the rights to sue. Other courts, as seen above, tend to avoid the question of property, and rather stick to the cause of action of mental anguish. There have also been those that use a combination of both in order to give justice to survivors who have dealt with the mental anguish caused with the interference or disturbance with the remains of a loved one.
In Crocker v. Pleasant, plaintiffs sued the city and county for interference with their rights in their son’s remains.[xc]The court acknowledged that in addition to the Florida statutes, the case law has also acknowledged the right to control remains for disposition, including burial purposes.[xci]The court also stated that the intrusion on the rights of disposition is a valid claim to recovery.[xcii] Mental suffering is a foreseeable consequence to the disturbance of a loved one and is usually the only type of harm that one can claim.[xciii] Therefore, the Florida courts have accepted various cases based on this type of wrongdoing, especially when the offense involves intentional misconduct or malice.[xciv] The court in this case concluded that Florida has a “legitimate claim of entitlement by the next of kin to possession of the remains” and that there was a wrongful interference with those rights.[xcv]
In Kirksey v. Jernigan, Ms. Kirksey sued a funeral home to recover for damages from mental suffering.[xcvi] The child died of an accident, while Ms. Kirksey was away, which caused the undertaker to take the body of the child to his funeral home without anyone’s permission.[xcvii] The court stated the following:
For cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.[xcviii]
Due to the extremely sensitive nature of the disposition of remains, disturbance of those rights is an especially valid claim for damages.[xcix] The court also stated that when the descendant’s right to the remains is unlawfully disturbed, or withheld, then there is a legal cause of action.[c] Therefore, mental anguish is the accepted cause of action to sue on because it is foreseeable consequence of a wrongful interference to the rights of remains.[ci]
When dealing with cremation jewelry, there are a couple of important issues to consider, including the transportation of the remains to a facility that creates art or diamonds. What happens if these items are lost or if your order is improperly put in and you get a blue diamond, when you wanted a yellow one? The answer seems to be to sue for mental anguish caused by the wrongful interference to your right to the remains. The next of kin who has a legitimate claim of entitlement could probably consider suing the transportation company or the facility that provided these options. Dealing with the remains of a loved one is a highly emotionally charged area; therefore, mental anguish for any wrongdoing is a probable consequence of any mistreatment that might occur.
C. Potential Future Problems
One additional problem that may arise in the future of cremation jewelry is incorporating cremation jewelry into a will, especially for the purposes of taxation. When evaluating an estate, there is a tax placed on the estate based on the value of the estate. Appropriately, jewelry adds value to an estate. However, would it be appropriate to tax jewelry that contained the remains of a loved one? It seems like society would suggest a resounding no, however, that may not be the result when facing an evaluation of property. There may not be a way to separate the cremation jewelry from the other jewelry one owns. Unless there was a specific way to report this during the estate, or if someone makes special note of it in a will, the jewelry may just find its way into the pile that is taxable.
Additionally, when one requests a cremation diamond, the creators rate the diamonds on the clarity scale that is used for a normal diamond.[cii] It may not be one hundred percent perfect, but essentially, it is virtually the same as a stone diamond. These diamonds are also very costly to create, and the diamond itself could be worth monetary value, in addition to the sentimental value, because there is not a significant difference between the stone and one created from human remains.[ciii] This could also cause a problem for taxation purposes, because even though it may seem morally wrong to tax something that came from human remains, there may be no describable difference.
Another potential future problem could be the loss or theft of the jewelry. Could the “owner” of the jewelry sue the thief? How would the thief even know that this particular piece of jewelry was made of cremated remains? Most of the time, thieves cannot be found, so would the loss count as mistreatment of a dead body? Could the “owner” of the cremation jewelry put insurance on it in order to safeguard it? With cremation jewelry being a new concept and method for burial, it seems that there may be problems in the future. The courts have yet to decide these issues, because those who have requested the jewelry to be made have not yet considered placing these items or a will.
There has been a strong cultural sentiment to honor and respect the dead through various burial methods, including mummification and burning. In the last few decades, the popularity of cremation has steadily increased, especially due to the high cost for burial plots. With the rise of cremation, there has been interesting choices with regard to handling the remains, including cremation jewelry.[civ] In order to determine who has the right to order the cremation jewelry, it is important to consider who has the right to control the remains. State statutes dictate who has an interest in the remains in descending order.[cv]
The problem arises when there is a conflict between those of equal status (or those who think they should have a higher status) about what to do with the remains.[cvi] These conflicts have been resolved in a variety of ways depending on the court.[cvii] Some courts will refer to the last wishes of the decedent, regardless of what the will stated, and some courts will split the remains among the survivors so that they may all have an equal share.[cviii]
Additionally, in order to be able to have a right to the remains, there must be some sort of “ownership” interest for the sake of burial and those decisions associated with those rights.[cix] These ownership interests have been called “quasi-property” rights and last until the remains are placed in their final resting place.[cx] This concept becomes especially important when dealing with cremation jewelry. One argument suggests that once the ashes have become a part of cremation jewelry they have made it to their final resting spot; however, it seems like one would have a continual ownership interest in the jewelry itself, especially compared to the rights of others.
Some courts have chosen to avoid the concept of “quasi-property” altogether, instead sticking to a tort analysis, which includes the suffering caused by loss or interference.[cxi] Therefore, the cause of action that one could sue for when dealing with the tortious interference with a dead body is that of mental anguish or mental suffering, especially since there is really no other way to recover.[cxii]
Cremation jewelry is an interesting way to commemorate the life of a loved one. One could literally create a family tree that one could wear around their neck, with a diamond or pendant for every person. This piece of jewelry could then be passed down through the generations. Grandma would be a literal heirloom. However, there could be several future problems, especially when it comes to taxation.[cxiii] When an estate is being valued for the purposes of taxation, every valuable item is included before the estate can be distributed.[cxiv] How does one calculate the worth of cremation jewelry? A family member has added value to something that had previously only had sentimental weight (such as urns), which means that it is technically valuable (especially when referring to the cremation diamonds). In addition, the jewelry is virtually indistinguishable from the other jewelry the decedent possessed; therefore, it would be almost impossible to exclude the cremation jewelry, even if only for morality sake.[cxv] Therefore, lawyers should advise their clients about the options for cremation jewelry and the potential problems that may arise in the future with regard to this new burial method.
[vi]Cremation Jewelry, Cremation Pendants, http://www.cremationjewelry.net/Cremation-Pendants-information.php (last visited November 19, 2011).
[xvi]Making a Cremation Diamond, supra note 31.
[xvii]Everlasting Memories, Cremation Art, access at www. evrmemories. com /Cremation-Art-Painting-s/241.htm (last visited November 19, 2011).
[xxi]Murphy, supra note 2, at 400. “Those states are the following: Alabama, Arizona, California, Colorado, Connecticut, Delaware, The District of Columbia, Illinois, Kansas, Minnesota, North Carolina, New York, Oregon, Rhode Island, and Texas.” Id. at n. 203. The surviving spouse of the deceased is typically the first person to be given control of the disposition of the remains. Id.
[xxii]Arthur v. Milstein, 949 So.2d 1163, 1163 (Fla. Dist. Ct. App. 2007).
[xxiii]Id. at 1164
[xxiv]Id. at 1165.
[xxv]Id. at 1166 (citing Kirksey v. Jernigan, 45 S.O.2d 188, 189 (Fla. 1950)).
[xxvi]Id. at 1166.
[xxvii]Id. It is important for those who would like to be a part of cremation jewelry to tell their family members, especially if they are not going to have a will, because then the decision will go to the descendant listed in the intestate statutes.
[xxviii]Booth v. Huff, 708 N.Y.S.2d 757, 758 (N.Y. App. Div. 2000).
[xxix]Id. at 759.
[xxxi]Id. Again, to determine who has the right to order cremation jewelry, it is important to consider who has the rights to the remains.
[xxxii]See Murphy, supra note 2, at 384-415.
[xxxiii]Id. at 460 (quoting Wash. Rev. Code §68.50.160 (2007)).
[xxxiv]Id. at 460 (referencing Wash. Rev. Code §68.50.160 (1) (2007)).
[xxxv]Id. at 404 (referencing Wash. Rev. Code §68.50.160 (2) (2007)).
[xxxvi]See Murphy, supra note 2, at 408.
[xxxviii]Ted Williams Frozen in Two Pieces, CBS News, Aug. 12, 2003, http://www.cbsnews.com/stories/2002/12/20/national/main533849.shtml (last visited November 20, 2011).
[xliii]Carrie Johnson, Williams’ Shift from Will must be Proven, St. Petersburg Times Online, July 20, 2002, http://www.sptimes.com/2002/07/20/news_pf/Citrus/Williams__shift_from_.s... (last visited November 20, 2011).
[xliv]Id. If one has a particular desire to be made into cremation jewelry, then that wish should be made known.
[xlv]Wenn.com, Bridges: Coleman had a Secret Will, Toronto Sun, June 3, 2010.
li]Kulp v. Kulp, 920 A.2d 867, 868 (Pa. Super. Ct. 2007).
[liii]Id. at 872.
[lv]Id. at 873
[lvi]See Murphy, supra note 2, at 408.
[lvii]Murphy, supra note 2, at 396 (citing Michael H. Scarmon, Brotherton v. Cleveland: Property Rights in the Human Body—Are the Goods oft Interred with their Bones, 37 S.D. L. Rev. 429, 436 (1991/1992)).
[lviii]Murphy, supra note 2, at 396 (citing Enos v. Snyder, 63 P. 170 (1900)).
[lix]See Jennifer E. Horan, When Sleep at Last has Come: Controlling the Disposition of Dead Bodies for Same-Sex Couples, 2 J. Gender Race & Just. 423, 430 (1999).
[lx]Id. (citing Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 441 (W. Va. 1985)).
[lxi]Horan, supra note 123, at 431.
[lxii]Id. (referencing McKibben v. McKibben, 119 N.Y.S.2d 685, 687 (N.Y.C. Mun. Ct. 1952)).
[lxiii]Horan, supra note 123, at 431 (citing Pettigrew v. Pettigrew, 56 A. 878, 878 (1904)).
[lxiv]Horan, supra note 123, at 432.
[lxv]Arthur v. Milstein, 949 So.2d 1163, 1163 (Fla. Dist. Ct. App. 2007).
[lxvi]Id. at 1166
[lxix]Ark. Bd. of Embalmers and Funeral Dirs. v. Reddick, 233 S.W.3d 639, 641 (Ark. 2006).
[lxxi]Id. at 643.
[lxxiii]See id. at 643-44.
[lxxiv]Id. at 644.
[lxxvii] See generally Part III A.
[lxxviii]See Pettigrew,supra note 124, at 60.
[lxxix] See Horan, supra note 123, at 435 (citingCarney v. Knollwood Cemetery Ass’n, 514 N.E.2d 430, 434 (Ohio Ct. App. 1986) (“In order to facilitate recovery for the mishandling of a dead body without conceding the existence of a cause of action for emotional distress, the courts have in the past resorted to the fiction of a ‘quasi property’ interest in the dead body.”)).
[lxxxi] See id. (referencing Walser v. Resthaven Mem’l Gardens, 633 A.2d 466, 473 (Md. Ct. Spec. App. 1993)). For the list of those who have a right to control the disposition of the remains see Part II and footnote 50.
[lxxxii]Id. (citing Christensen v. Superior Court, 820 P.2d 181, 191 (Cal. 1992)).
[lxxxv]Horan, supra note 123, at 436.
[xc]Crocker v. Pleasant, 778 So.2d 978, 978 (Fla. 2001).
[xci]Id. at 987 (citing Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla. 1950)).
[xcv]Id. at 988.
[xcvi]Kirksey v. Jernigan, 45 So. 2d 188, 188 (Fla.1950).
[xcvii]Id. at 189.
[c]Id. at 190.
[cii]Making a Cremation Diamond, supra note 31.
[civ]See Part I A
[cv]See Part II A.
[cvi]See Part II B.
[cix]See Part II C.
[cxi]See Part III A.
[cxiii]See Part III C.