New Jersey Supreme Court Declines to Allow Widow to Disinter Husband’s Body

Marino v. Marino, No. A-18-08 (N.J. S.C. Sep. 24, 2009):  The New Jersey Supreme Court held that the state’s disinterment statute does not automatically give a surviving spouse authority to disinter the deceased spouse, even though the surviving spouse has primary authority to determine the interment location absent a contrary written declaration. 

Larry Marino died in 2005.  His wife Joan survived him.  Larry’s children, including a son who was a co-executor of Larry’s estate, chose to bury Larry near a family plot.  Eight months later, Joan filed suit to have Larry’s body disinterred and buried in a place of her choosing.

A Chancery judge held that because Larry’s will did not provide burial directions, Joan, as surviving spouse, initially had the right to designate Larry’s burial location.  The court held that the real issue, however, was whether Joan had a right to disinter the body after burial.  The court held that she did not, citing to the state’s disinterment statute and Larry’s desire to buried in the family plot.  The Court of Appeals reversed, stating that the interment and disinterment statutes should be read in pari materia, effectively giving Joan the power to disinter Larry’s body.

The Supreme Court reversed the Court of Appeals, holding that the internment and disinterment statutes should not be read in pari materia.  Furthermore, the court held that legislative intent disfavored disinterment and did not give the surviving spouse sole decision making authority on this issue.  Because adult children, along with the surviving spouse, have statutory authority to make disinterment decisions in New Jersey, the court held that Joan’s desire to disinter Larry’s body was insufficient.

Special thanks to Ken Coughlin (ElderLawAnswers) for bringing this case to my attention.