Can ashed be divided in probate?

Ashes to Ashes – Ashes are not Property to be Divided

The question of whether ashes of a deceased person can be divided comes up often among family members, distraught over the loss of a loved one, and particularly in modern day family situations with divorced parents and blended families.

This question was answered in 2014 in the Fourth District Court of Appeal’s opinion in Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4thDCA 2014).  Ashes are not property as defined by Fla. Stat. 731.201(32) and thus not subject to partitioning or division.

The facts in Wilsonare tragic.  The decedent was 23 years old, single, with no children, and was killed in a car accident. He was intestate.  He left no instructions on the disposition of his body.  His parents, who had divorced prior to their son’s death, served as co-personal representatives, and were the sole beneficiaries.

The parents decided to have their son’s body cremated, but then the dispute arose as to the disposition of his ashes.  His father petitioned the probate court to have the ashes partitioned, or divided, as property, asking the probate court to allow each parent to dispose of half of the ashes they desired. The mother opposed the request to divide the ashes, for religious reasons.

The trial court found that the ashes could not be divided or partitioned, because the ashes are not “property”.  The father’s petition was denied, and the appeal was filed.

Even after considering authority of other states, the Fourth District Court of Appeal confirmed the probate court’s decision. The court acknowledged the sensitivity of the issue, and while it may be the desire of a decedent’s next of kin as to division of remains, remains are not property to be divided.

Should you have questions on instructing the disposition of remains, as part of your estate planning, please seek the advice of an experienced estate planning attorney.