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Gainesville Florida Estate Planning & Elder Law Blog

Wednesday, August 3, 2016

Cremated Remains are Not Property

It took the Florida Legislature to determine this but the cremated remains of a loved one are not property and cannot be split amongst heirs like the revenue from an estate sale or other assets. The determination from the Legislature was part of wider legislation governing Florida’s funeral-home industry.

The Legislature may have stepped in because of a 2014 decision by the 4th District Court of Appeal, which ruled a son’s ashes should not be split 50-50 between two divorced parents. The father hoped to divide the ashes with his ex-wife. He argued that they were assets from his son’s probate estate and should be divided. But the court ruled against him citing a long history of common law decisions.

Under the new law, a division of cremated remains requires the consent of the legally authorized person who approved the cremation or, if the legally authorized person is the decedent, the next legally authorized person. So the law basically says the only two people who can divide cremated remains are the person who has died if they declare before their death that they want their ashes divided or the executor, who is limited by the directions spelled out in the will.


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