Question: I was chatting with friends over coffee this evening and someone mentioned the “right of sepulcher”. What exactly is that right?
Answer: The right of sepulcher is common law in New York State and prescribes the right to choose and control the burial, cremation, or other final disposition of a deceased person.
In fact, the right of sepulcher has been around for many decades. The law specifies that a Decedent’s next of kin have an absolute right to the immediate possession of a Decedent’s body for preservation and burial. If an institution or person interferes or improperly deals with the Decedent’s body, the law dictates that damages may be awarded against that institution or person as compensation to the next of kin for the emotionally inflicted injury that resulted from the inability to conduct a proper burial.
If applicable, the Decedent’s next of kin is entitled to commence a proceeding for the violation of his or her right of sepulcher when the next of kin’s right to the immediate possession of the Decedent’s body is interfered with and causes the negligent infliction of emotional distress.
As with many things there are exceptions to the right of sepulcher. For example, the right of sepulcher cannot infringe on the authority of the Medical Examiner’s Office to perform its duties. There are certain situations when the medical examiner has the authority, prescribed by statute, to perform autopsies including death by accident or violence, suicide, or where the Decedent died while unattended by a physician.
Also, although the right of sepulcher gives the next of kin the rights outlined above, if there is an agent appointed in a written instrument properly signed by the Decedent then that agent has priority over others to make decisions.
As the Decedent’s next of kin, there is a natural desire to want to properly bury your loved one. It is in these rituals that we find comfort in loss. If you feel your rights are being infringed upon, it may be prudent to contact a qualified estate attorney to discuss your options.
– Nancy Burner, Esq. and Maria Johnson, Esq.