Superior Court Permits Disinterment Over Objection Of Decedent’s Daughter

Immediately after the sudden death of her husband, Elizabeth Greenstein was approached by a rabbi who convinced her to purchase two cemetery plots. Shortly after burying the decedent in one of the plots, his wife realized the plots were “poorly situated and exceedingly small.” She then purchased a larger family plot and sought to move the decedent’s remains to the new family plot. The decedent and his wife Elizabeth had two minor sons. The decedent also had a daughter from a previous marriage, Amanda Babyatsky. Although Amanda initially gave written consent for her father’s disinterment and reburial, she later revoked that consent.

Therefore, the decedent’s wife sought an order of disinterment from the Superior Court of New Jersey, Bergen County, Chancery Division, General Equity Part. The wife’s uncontested request for temporary restraints was granted, and both the plaintiff/wife and the defendant/daughter were temporarily enjoined from “adversely affecting the remains” of the decedent or the burial plots.

The plaintiff/wife then sought an order compelling the disinterment and reburial. The Honorable Menelaos W. Toskos J.S.C. granted the plaintiff’s request for disinterment and reburial.

The court began by recognizing that disinterment is governed by N.J.S.A. 45:27-23, which provides that,

Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:… (1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing.

Judge Toskos noted that, when written consent is not forthcoming, a court of equity must decide the issue by “strik[ing] the balance in favor of giving voice to the decedent’s clear preference.” (Citing Marino v. Marino, 200 N.J. 315, 322, 328 (2009).)

Although disinterment is “general disfavored absent a showing of good cause and urgent necessity,” the court cited the following guidance:

A number of factors have been held to bear on a decision to disinter. They include the decedent’s stated preference, if any, religious considerations, ownership rights in the plot, the closeness of the relationship between the petitioner and the decedent and the lapse of time from the original interment. Also included is the petitioner’s desire to satisfy a longing that those united during life shall not be divided after death.

Felipe v. Vega, 239 N.J. Super. 81, 85 (Ch. Div. 1989).

The Greenstein court concluded that the evidence presented weighed in favor of disinterment. The application was brought by the decedent’s wife and was supported by his sister, both of whom had a close and loving relationship with the decedent. The defendant/daughter opposing the application, on the other hand, had a strained relationship with her father, and there was evidence that her opposition to the disinterment was “solely for the purpose of punishing her other family members.” The court found that the application was a matter of urgency, because the funeral home had indicated that disinterment should be addressed as quickly as possible. It also found that, although Jewish law disfavors disinterment, it permits the action for reburial in a family plot. Finally, the court noted that the decedent had a “strong sense of family” and had traveled to Poland to visit the family’s gravesites. It concluded that, given the totality of the circumstances, “equity favors allowing disinterment.”

The plaintiff/wife had also sought to compel the defendant/daughter to pay counsel fees. That request was denied, based upon the American Rule.

A copy of Greenstein v. Babyatsky can be found here. Greenstein v Babyatsky (C-133-14) 7-17-15

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