Court Decides Who Has The Right To Control Funeral Arrangements And Disposition Of Decedent’s Remains Under NJ Law

John E. Travers, Jr. died unexpectedly in 2017 at the age of twenty-two. He was unmarried and died without any children, without a will, and without any written directive regarding his funeral or the disposition of his remains.

Decedent’s parents, who are divorced, differed on how their son’s remains should be disposed of, and each sought control over the remains.  Decedent’s father, John E. Travers, Sr., wanted his son’s remains to be buried, while decedent’s mother, Katherine Coyle Travers, wanted her son’s remains to be cremated. The parties reached agreement on every other aspect of the administration of their son’s estate.

Under the New Jersey Cemetery Act (the Act), the right to control the funeral arrangements and disposition of a decedent’s remains is left to the surviving parents of the deceased if there is no will appointing another person to control disposition and where, as here, there is no surviving spouse or adult children.

In the event of a dispute between the decedent’s parents, the court was empowered to resolve dispute. However, while the Act identified the order of persons holding the right to control the funeral arrangements and disposition of human remains, and held that the court was empowered to resolve disputes, there is no guidance in the Act, or in New Jersey case law, on how to resolve disputes between next-of-kin of equal statutory standing (i.e., surviving adult children, parents, siblings or other next-of-kin).

Based upon the legislative history of the Act, the court concluded that it should consider which next of-kin will likely control the funeral and/or disposition of remains in a manner that most closely reflects the wishes, desires and expectations of the decedent.

To do so, the court identified the following four relevant factors to consider: (1) Which next-of-kin is more likely to abide by the wishes and desires of the decedent; (2) Which next-of-kin established a closer relationship to the decedent, and is thereby in a better position to surmise the decedent’s desires and expectations upon death; (3) Which next-of-kin is more likely to adhere to the religious beliefs and/or cultural practices of the decedent; and (4) Which next-of-kin, if designated as administrator of the estate and act in the best interests of the estate to: (a) determine the costs, funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains.

After considering the four relevant factors identified above, the court found that three of the four factors were neutral and that the fourth factor, the relationship between the parties, weighed strongly in favor of decedent’s father. The court concluded that decedent’s father had the closer relationship to the decedent at the time of his death. Consequently, the decedent’s father was in a better position to surmise the decedent’s wishes and desires for disposition of remains. Therefore, the court granted John E. Travers, Sr.’s petition to control the disposition of the remains of decedent.

The case is attached here – In the Matter of the Estate of John E. Travers, Jr

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Donald D. Vanarelli has been a practicing attorney since 1983 in New Jersey and New York. Don provides legal services in the areas of elder law, estate planning, trust administration, special education, special needs planning and trial advocacy, including probate litigation, will contests, contested guardianships and elder abuse trials.

Don is a Certified Elder Law Attorney, an Accredited Veterans Attorney and a Past Chair of the Elder and Disability Law Section of the New Jersey State Bar Association. Don is a recipient of the Lifetime Achievement Award, the highest honor given by the New Jersey State Bar Association – Elder and Disability Law Section. The Lifetime Achievement Award is bestowed on an attorney with an established history of distinguished service who has made significant contributions in the field of elder and disability law throughout his or her career.

Don is actively involved in trial advocacy on behalf of elderly and disabled citizens. Don represented the plaintiff in a pivotal special needs trust case decided by the New Jersey Supreme Court entitled Saccone v. Police and Firemen’s Retirement System, 219 N.J. 369 (2014). He also represented the plaintiff in a seminal estate planning / guardianship / Medicaid planning case entitled In re Keri, 181 N.J. 50 (2004). Don was also co-counsel representing the plaintiff in Galletta v. Velez, Civil No. 13-532 (D.N.J. June 3, 2014) in which a federal court ruled, for the first time, that a pension from the Department of Veterans Affairs may not be counted as income in determining Medicaid eligibility.

When he’s not working, Don spends his time with his wife, Marion, and his three children, Julianne, Evan and Alex.