Surviving Spouse Had The Absolute Right To Choose Burial Site For Deceased Spouse, But Not The Absolute Right To Disinter And Move Spouse

In a case which resolved a conflict between two sections of the New Jersey Cemetery Act of 2003, the New Jersey Supreme Court recently ruled that a widow who claimed she was duped or misled into believing her husband wanted to be buried in his lineal family’s plot cannot move his remains, since New Jersey has adopted a strong public policy disfavoring disinterment.

The case, Marino v. Marino, involved Larry and Joan Marino, who were married at the time of Larry’s death. Larry had two children from a prior marriage and four with Joan. Apparently, Larry’s children did not get along with Joan or her children. When Larry died, his Will said nothing about his burial preferences. Larry’s children decided to bury Larry in Larry’s family plot, while Joan wanted him buried in her own family’s plot; each set of plots were in the same cemetery so the argument was over the forty feet separating them. Larry’s children prevailed over Joan’s wishes.

Several months after the burial, however, Joan had a change of heart. She filed a lawsuit, arguing she had been unduly pressured by Larry’s children who, she claimed, had threatened to prevent her from attending Larry’s funeral if she did not agree to their choice regarding the burial plot. Joan wanted Larry disinterred and moved. The trial court found that Joan’s rights were not absolute regarding disinterment, although Joan had the absolute right to decide on the burial site under New Jersey law, absent contrary testamentary direction. On appeal, the Court of Appeals reversed. The appellate court read the interment and disinterment statutes in pari material, finding that Joan’s statutory protected right to select a spouse’s interment site was violated.

The Supreme Court reversed. Agreeing with the dissenting opinion from the Court of Appeals, the Supreme Court found that interment and disinterment are not the same and, therefore, the expression of legislative policy in the interment statute could not be imported to the disinterment statute. The disinterment statute did not give absolute discretion to a surviving spouse. Instead, the disinterment statute required consent from various parties. Because the parties identified as having a right to object to disinterment did not speak with a unified voice, the trial court was correct in finding that Joan’s preference was not absolute and was insufficient as a matter of law.