Who Decides What Happens to Your Body After You Die?

17 September, 2024 3 minutes reading time

Your Body, Their Decision?

Many people mistakenly believe their wishes in a Will are legally binding when it comes to what happens to their body after death. This misunderstanding can lead to unexpected and sometimes painful disputes among surviving family members. While the Law Commission may have started a long overdue review of the “ancient laws” over what happens with a deceased’s remains, the current reality is more complex than many realise.

The Power of a Will

A Will isn’t just a legal document; it’s your voice beyond the grave. While your funeral wishes aren’t legally enforceable, they carry significant weight. Expressing your preferences in a Will helps minimise family conflicts and provides a sense of relief and peace of mind.

No, Will? No Say?

Dying without a Will (intestacy) complicates matters. The law dictates a hierarchy of decision-makers, starting with the spouse or civil partner and then the next of kin. This can lead to disputes, particularly in blended families or strained relationships. However, planning ahead with a Will empowers you to prevent such heartache.

The Legal Framework

The UK has no single law on body ownership after death. Instead, a patchwork of legal principles and case law guides decisions. Here’s the gist:

• No one “owns” a dead body.
• The person responsible for disposal has the right to possession.
• Crematoriums must give ashes to whoever delivered the body for cremation.

Who’s in Charge?

The Executor (if there’s a Will): The executor is not just a legal figure but =someone you trust. An Executor carries out the deceased’s wishes, including funeral arrangements. Though these wishes aren’t legally binding for body disposal, they hold significant moral weight and should be considered. The executor’s role is not just about legality but respecting the deceased’s wishes, making it a crucial part of the decision-making process.

Next of Kin (no Will): If there is no will, the deceased’s next of kin decides. However, this right is not absolute and can be challenged.

Hospital/Coroner: If a person dies under specific circumstances (e.g., in a hospital or requiring a coroner’s investigation), the hospital or coroner has temporary custody until release arrangements are made. They’ll usually consult with the next of kin or Executor. 

Spouse/Civil Partner: A surviving spouse or civil partner usually has a strong claim, even if not the next of kin. However, their wishes can be contested, especially in strained relationships or with competing claims. Notably, these rights don’t extend to unmarried cohabiting partners.

Key Legal Precedents

Williams v Williams (1882): This case established no one “owns” a body. However, the Executor or Administrator has the right to possess and control it for burial or cremation, considering the deceased’s wishes and public health/decency.

R v Kelly (1998): This case clarified that cremated remains are considered property, especially if kept instead of scattered or buried. This highlights the legal implications of handling ashes without proper consent.

Our Advice

Disputes over remains are more common than you’d think. A Will lets you express your preferences, minimising conflict and easing the burden on your loved ones.

If a dispute arises, seek early legal advice. An experienced lawyer can help resolve it sensitively, ensuring the deceased’s wishes are honoured as much as possible. Please don’t hesitate to contact us for help and advice with all aspects of Will and Probate disputes. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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