Who has the right to dispose of the ashes of the body of the decedent?

Irene, Thomas’s first wife, died in 1999.

Thomas and Ann were married in 2000. In January 2012, Thomas filed for divorce from Ann. On May 23, 2012, before the divorce was final, Thomas died. No final divorce decree was rendered.

Thomas left a November 3, 2011 Last Will and Testament that named Curtis, his son from a prior marriage, as his independent executor. Ann contested the Will and claimed that Thomas was not competent at the time he signed the Will.

Ann and Curtis agreed that Thomas wanted to be cremated and wanted his cremains buried next to Irene in a family plot in a Houston cemetery. Ann and Curtis agreed that Thomas left no writing specifying who would control the disposition of his ashes upon cremation. Ann and Curtis each wanted that responsibility.

At a hearing to determine who would control the disposition of Thomas’s cremains and who would conduct the ceremony to bury the cremains, the trial court ordered Thomas’s Will admitted to probate, Curtis appointed independent executor, and Thomas’s cremains delivered to Curtis as independent executor for disposition.

Issue:

Ann, as the surviving spouse, has preference to control the disposition of Thomas’s cremains under Texas Health and Safety Code Section 711.002.

May a probate court order Curtis as independent executor of Thomas’s Will to control the disposition of his remains?

Decision:

No. Marriage in Texas may only be terminated by death or a court decree. Even though they were only estranged, Thomas was still married to Ann on the date of his death. Thus Ann, as Thomas’s widow, had priority ahead of his son, Curtis, to dispose of his cremains. See In re Estate of Woods, 402 S.W.3d 845, 849 (Tex. App.—Tyler 2013, no pet.).

Reasoning:

Case law has emphasized that the widow has the paramount right to designate the place and manner of burial. A surviving spouse, even one who is separated from the Deceased spouse at death, retains the status afforded by the marriage relationship.

‘Moral of the Story’

The intent of the Legislature, as reinforced by the case law, even if estranged from the Deceased, has priority to dispose of the Deceased’s cremains, over a child of the Deceased.

Although Texas Probate Code section 69(a), now Texas Estates Code section 123.001, does provide that:

if the testator is divorced or his marriage is annulled after making a Will, all provisions in the Will in favor of the testator’s former spouse or appointment of such spouse to any fiduciary capacity under the Will or with respect to the Estate or person of the testator’s children must be read as if the former spouse failed to survive the testator, and shall be null and void and of no effect unless the Will expressly provides otherwise; however, this language is without effect where the Will fails to provide a different priority in the event of the testator’s divorce or annulment.

Thus, the priority to the surviving spouse controls over the child of the Deceased.