Who has the right to deal with my body after I die?
With the recent news that the Law Commission is set to review the “ancient laws” over what happens with a deceased’s remains, we look at the current state of affairs in this often hotly disputed area and how the law hopes to catch up with modern society.
Rather disappointingly, your wishes don’t legally bind anyone into dealing with your body in the way you might want them to once you’re gone. Despite being able to make such wishes clear in your Will, your preferences (from where your ashes should be scattered to which music you’d like played at your funeral) will be merely persuasive – you can hope your loved ones will do right by you, but nothing more.
The absence of a legally binding mechanism for this situation can, and often does, lead to disputes, tearing families apart at a time when they particularly need to come together.
No ownership in a body
The starting point is that no-one can own a body because it cannot be defined as property (in the same way as your house or your watch could be). A body cannot therefore be gifted or disposed of by Will. Instead, possession of the body can only be temporary and even then, only usually on the basis of a ‘duty to dispose’ – which is vested in the person given the appropriate authority. One exception to this is where a body (or part of it) might be donated for medical or scientific research.
So who actually deals with disposal of a body?
Strictly speaking, a hospital would have the right to keep your body if it’s deemed to be infectious or you had died from a notifiable disease – at the time of writing and by way of example, this includes the more recent and now widely reported Covid-19 and Monkeypox diseases.
Next up is the coroner – they would need to determine cause of death and therefore have a temporary right to take possession of the body, following which it can be released.
The next port of call is then either:
• the executors named in your Will (if you have one); or
• the person with priority under the rules of intestacy (where there’s no Will).
On a separate note, parents of minor children have a duty to arrange the funeral.
Debunking myths – position of the modern ‘cohabitee’
Unfortunately, any arguments starting with a ‘next-of-kin’ claim, is often where the troubles begin and disputes arise in this area.
Where a surviving spouse or civil partner claims the right to take possession or deal with their loved one’s body after death, they would need to derive their authority from the deceased’s Will or otherwise under the intestacy rules.
Conversely, couples who have made the decision not to marry or enter into a civil partnership (in other words a ‘cohabitee’) unfortunately continue to suffer under the yoke of the law in this area. If there’s no Will in place appointing them as executor, there is no automatic right to take the body and arrange a funeral – cue the can of worms for disputes.
Cases in point
We’ve already covered ‘no ownership’ of a body – something which can be traced as far back as 1614 with cases involving the digging up of graves and theft of burial sheets.
Jumping forward some 380 years and we find the removal and disposal of a deceased’s brain led to the same decision by the Court – there can be ‘no property in a corpse’ and the right to take possession does not simply fall to ‘next of kin’.
Bringing things more up to date, we dive briefly into the case of Pangou v Nzoulou (2022) in which the Court decided to grant a cohabitee the right to take possession of and dispose of her husband’s body. It should be noted this decision was on the basis of special circumstances under which the Court could use their powers for expediency and necessity. The decision revolved around many factual aspects involving the deceased’s own written wishes (in his journal) and how closely tied he was to his new family ultimately gave them the limited power to deal with his body.
The law has struggled to keep up with modern day family arrangements and it remains that having a Will in place best serves to resolve the majority of potential issues in this sensitive area.
What about ashes?
The rules surrounding cremation resolve that the person delivering the body for cremation (for example an executor) takes possession of the ashes. Crematoria generally state this clearly in their paperwork, but not all executors, partners or close relatives are informed, and this is where disputes often arise. Sadly, it’s not yet clear whether ashes should be included under the same rules as govern what happens to a body so decisions on the subject have been largely inconsistent.
Disposal of ashes
The deceased may have specified what they want to happen with their ashes in their Will, or perhaps they simply told a loved one what they wanted to happen. In any event, a sensible dialogue between family members should be kept open to settle any decisions about the ashes as amicably as possible.
In the absence of any guidance from the deceased, loved ones often prefer to scatter ashes in a location that meant something to the deceased. The law on scattering ashes is quite relaxed, but scattering ashes over private land would first require permission from the landowner. Here are a few useful links to the websites of some of the more popular ashes-scattering areas:
You can also bury the ashes in your garden, but if you later decide you want to move them, you’d require an exhumation licence to do it officially.
Scattering and burying ashes – churchyard / cemetery
While proving a popular place to scatter ashes, not all cemeteries and churchyards will allow scattering ashes. You should always check with the cemetery/churchyard in question to find out what their rules are and the requirements to proceed, before going ahead. Scattering ashes over an existing family grave requires you to have the “exclusive right of burial” for it, for which you usually pay. If you do have an exclusive right of burial, check that the documentation is in date – if it has lapsed, you’ll need to renew the right and/or ask permission from any new owner before going ahead.
Different rules apply for burial of the ashes. You’ll still need to get in touch with the organisation in charge of the land and will likely need to sign a burial plot application form (usually issued by the Local Council or the cemetery/churchyard in question). If burying ashes in an existing grave, you’ll still need to pay a fee for opening the grave and interring the ashes.
Rivers and Seas
You don’t need to request permission to scatter ashes over a river or in the sea, but you should check the advice from the Environmental Agency first, steering well away from any drinking water supply and avoid scattering close to marinas or areas used by anglers.
You don’t need permits or permission to scatter over the sea, but you should still follow the Environment Agency’s guidance as their jurisdiction is 5 miles from the coast.
Ultimately, common sense should prevail when scattering ashes. One should try to avoid busy periods (Public Holidays), windy days and land where animals are grazing. If scattering on a cliff-top, check that no one is walking underneath first.
So what’s next?
Modern society has steamed well ahead of what are clearly outdated, complicated and inflexible laws in this area. We welcome the Law Commission’s new project to bring matters up to date – more information can be found at: https://www.lawcom.gov.uk/project/a-modern-framework-for-disposing-of-the-dead/.
Last but certainly not least, the best advice is to make a Will to provide direction as to what is to happen to your body after death. This way you can ensure your appointed executors take on the responsibility for the disposal of your body when you die – their decision will be final in the event of any dispute.
If you would like some specific information about your current situation and a friendly conversation about the process of dealing with a loved ones body get in touch with our Private Client Law team today on 0330 912 8338.