Tuesday, October 18, 2005

Duty to Bury

Several times recently we've been asked whether a husband or wife has an obligation to pay for the burial of their deceased spouse. While we have a page on the law about burial, none of the statutes or regulations linked there seem to create a duty. Common law, however, provides the answer:

Durell v. Hayward, 75 Mass. 248 (1857) says: "The indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulture in a suitable place, carries with it the right of placing over the spot of burial a proper monument or memorial..."

Vaughan v. Vaughan, 294 Mass. 164 (1936) says: "In this Commonwealth the right to possession of the dead body is in the surviving husband or wife, with the duty of burial, and not in the executor or administrator where there is no expressed wish of the testator as to the disposition of the remains."

Finally, the Elder Law Center summarizes it this way: "In Massachusetts, the wishes of the decedent govern the disposition of remains. If there are no expressed wishes, the decedent's surviving spouse has the right to possession of the body, with the duty of burial. If there is no surviving spouse, the next of kin have the right to possession, with the duty of burial. In the event of conflict, the desires of the surviving spouse supersede those of next of kin."