“’Til death do us part” might be a little premature. In Illinois, your body will be controlled by your spouse after your death unless you have left written instructions that read otherwise.
“[T}he following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent’s remains and are liable for the reasonable costs of the disposition:
(1) the person designated in a written instrument that satisfies the provisions of Sections 10 and 15 of this Act;(2) any person serving as executor or legal representative of the decedent’s estate and acting according to the decedent’s written instructions contained in the decedent’s will;(3) the individual who was the spouse of the decedent at the time of the decedent’s death;(4) the sole surviving competent adult child of the decedent, or if there is more than one surviving competent adult child of the decedent, the majority of the surviving competent adult children; however, less than one-half of the surviving adult children shall be vested with the rights and duties of this Section if they have used reasonable efforts to notify all other surviving competent adult children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving competent adult children;(5) the surviving competent parents of the decedent; if one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this Act after reasonable efforts have been unsuccessful in locating the absent surviving competent parent;(6) the surviving competent adult person or persons respectively in the next degrees of kindred or, if there is more than one surviving competent adult person of the same degree of kindred, the majority of those persons; less than the majority of surviving competent adult persons of the same degree of kindred shall be vested with the rights and duties of this Act if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kindred of their instructions and are not aware of any opposition to those instructions on the part of one-half or more of all surviving competent adult persons of the same degree of kindred” 755 ILCS 65/5
If you are divorced, you have no spouse to decide what happens to your body. A divorced person’s last will and testament, their child or their nearest relative will decide what happens to their remains.
A dead spouse’s body is not an asset, it is a responsibility.
“The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent’s remains devolves upon the next of kin in order to make appropriate disposition thereof, whether burial or otherwise.” Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117 (1973)
“Right of possession of a dead body in the absence of any testamentary disposition belongs usually to the husband or wife or next of kin.” People v. Harvey, 286 Ill. 593, 601 (1919)
“The decided weight of authority in this country supports the proposition that while a dead body is not considered as property, in the ordinary, technical sense in which that word is usually employed, yet the law does recognize a right, somewhat akin, perhaps, to a property right, arising out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes and requires them to take possession and control of the dead body for the purpose of giving it a decent burial. This right is an exclusive right to the custody and possession of the remains, and in the absence of any testamentary disposition, belongs to the surviving husband or wife, if any, or if there be none, then to the next of kin.” Mensinger v. O’Hara, 189 Ill. App. 48, 53-54 (1914)
“While it may be true there is no right of property in a dead body, in the ordinary sense, it is also true that the nearest relatives of the deceased are and have been in all ages, so far as known, except under ecclesiastical law, recognized as legally entitled to its custody, to lay it away in burial. It is the duty no less than the right of such relatives to protect it from unnecessary violation, and any infringement upon that right, except where made necessary for the discovery and punishment of crime, violates the tenderest sentiments of humanity.” Palenzke v. Bruning, 98 Ill. App. 644, 650 (1901)
An Illinois probate court must decide quickly who is responsible for a dead body.
“Any dispute among any of the persons listed in Section 5 concerning their right to control the disposition, including cremation, of a decedent’s remains shall be resolved by a court of competent jurisdiction within 30 days of the dispute being filed with the court.” 755 ILCS 65/50
Until the person responsible for the body is identified, the administrator of the estate has a fiduciary relationship with the beneficiaries and to “act in the utmost good faith to protect their interests.” Will v. Northwestern University, 378 Ill. App. 3d 280, 292 (2007). This means the administrator holds onto the ashes or keeps the remains from being tampered with until the proper person to decide on those remains’ treatment has been determined.
Funeral homes are not to accept bodies until they know who has the authority to direct them to act.
“A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent’s remains, or to inter or otherwise dispose of the decedent’s remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.” 755 ILCS 65/50
Once the funeral parlor has what seems to be good authority from the appropriate person, they can follow that person’s instructions without fear of reprisal.
“There shall be no liability for a cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment that carries out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent’s remains.” 755 ILCS 65/45
If you are not comfortable with your husband or wife disposing of or preserving your remains after your death, you need a will…or a divorce. Contact my Chicago, Illinois family law firm to discuss the second option with an experienced Illinois divorce attorney.
