Who has legal rights to cremains?

18 answers | Last updated: Dec 19, 2016
Vonna in illinois asked...

Who has legal rights to cremains? My spouse is deceased and we both wanted to be cremated. I have his ashes already sealed in the urn and memorial service is over. His children are now demanding I have the urn reopened so they may have some of his ashes. I have a spiritual problem with that, as I believe the ashes should remain all intact. Do they have a legal right to his cremains?

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your state, Illinois, has a very specific law controlling who is entitled to control a deceased person’s cremated remains, also known as cremains.

It provides that the following people, in the order listed, have the right to control them:

  • a person the deceased person designated in writing
  • the executor or legal representative of the estate, acting according to direction in the will
  • a spouse, and then
  • the majority of surviving competent adult children.

So unless your spouse left other instructions for distributing his cremains, in either his will or another writing, you are legally entitled to keep them as you see fit.

Take some time to explain to the children why you feel as you do and ask them to respect your beliefs. But also understand that they may find it personally important to have some lasting memento of their father. You might find out whether there is some other object they might enjoy having: perhaps a favorite book, hat, fishing pole, or golf club.

Community Answers

Adjunct prof.rosellfernandez answered...

I actually read a very interesting report on Wikipedia regarding religious reasons for and against cremation. Did you know that some Christians believe that you should not cremate because of the ideo/theology of the Resurrection? therefore I would think long and hard as to why you want to deny them having the ashes of the bones of the deceased. If you cannot quote specifically according to your "specific" religious belief as to why you are denying them, then I feel you are being mean spirited and resentful. Vengeance is mine said the Lord, forgive them for they know not what they do. may God forgive you.

Mechel.b answered...

I think that it is very important that the heart of the matter is looked at. For years there have been conflicting issues between step families. The new wife may feel threatened by her husband's children because she wants to be "first" in her husbands life. This is a normal feeling for any woman. A woman does not want to feel as though she falls 3rd in line when it comes to her husband's love and priorities. Even the childs natural mother wouldn't like this. At the same time, children may feel "pushed aside" when their father marries another woman. Thus, they may feel that this woman is "taking" their father away from them. Of course, no child should ever be made to feel this way. But...because of apparent jealousy issues, there tends to be a tug-of-war over dad's love and affection between the new step mom and children. This can go on throughout the lifespan of the new family system and unfortunately, tends to continue on after death. Although a spouse has the "legal" right over her husbands cremains, his children and their feelings should not be disregarded. This only continues on with the tug-of-war syndrome.

It is important to understand that we are talking about two kinds of love here. The love that a man has for his wife is completely different than the love that he has for his children. Although the love is different, they both hold equal value to the husband/father. In other words, there is enough love to go around for both his new wife as well as his children. Ma'am, your husband loved you immensely, but he loved his children very much, too.

As far as sharing your husbands cremains and your spiritual values, if you read your bible, you will see that Jesus always chose mercy over the law. There are many passages of Scripture proving this point. Read the whole chapter of Luke 6 and you will see for yourself. Luke 6:2-4 "And some of the Pharisees said to them, "Why are you doing what IS NOT LAWFUL to do on the Sabbath?" But Jesus answering them (in the disciples defense) said, "have you not even read this, what David did when he was hungry, he and those who were with him; "how he went into the house of God, took and ate the show-bread, and also gave some to those with him, which is not lawful for any but the priest to eat?"

...Scripture proves that Jesus chose mercy over keeping the laws and customs much of the time. People were not made for the law, but the law was only meant to be a tutor to guide people into righteousness. When Jesus came to earth, the law was fulfilled and no longer needed because we are now under grace and the law of liberty - but we are not to take that liberty as a means to give us permission to sin. But again...we are not "bound" to laws anymore.

In the case of sharing the cremains, do you think that Jesus would break the heart of this man's children just to keep the law?... If a person truly knows the merciful heart of God, they would know that Jesus doesn't do this sort of thing.

I would say to find a way to make his children feel loved and to recognize that "in truth" - apart from the laws of this country, they hold a "position" as his biological children. This position should not be denied any less than your position as his widow.

Barb Pierce., M.S. Counseling Psychology

Fiona answered...

Most cremation societies have on display tiny versions of the urns for the cremains. When my Dad passed on, I had a tiny urn filled for my Mom (who had dementia) and for my brother. Now that Mom has passed on, I had one tiny urn filled for my brother and the rest of Mom is in a big urn on the piano that she bought for me when I was 8 years old and she started me on lessons. Some folks want part of themselves scattered in woods, or on bodies of water that have meaning to them. Some have their loved ones pressed into jewelry. Your late husband's children deserve your consideration. The cremains are just that, what is left behind. Surely your memories of your husband are what you treasure the most. Let the kids have tiny urns of him, to feel that he is with them still. Peace be with you.

Ca-claire answered...

I can understand the widow's concern about splitting up the ashes of her husband. My husband's children asked for nothing (once they knew there was no money), but when I made my husband's choices at Neptune Society (NS), arranging his cremation and disposition of his cremains, I took his children into account. Since My husband was a retired SSG in the US Army, I had some ashes put into a small statue that NS had which was an Eagle landing on a small tree with a US Flag draped on it - his son's each received one of those. For his daughter, I chose a small statue of a dolphin riding a wave with a small turtle and a couple starfish (he and I loved to snorkle in Jamaica). For myself, I have a square brushed nickel box that is about 10 square inches and about 3 inches high, which spins on a lazy susan type base. On top of that I have a life-size starfish which holds a small amount of his cremains. At some point, I will scatter the bulk of his ashes in Jamaica (whenever I can afford to go there), but until then, he is with me.

Personally, I do not worry about some of his cremains being scattered in different place, because Heavenly Father will resurrect us with complete whole perfect bodies when the time comes - Earthly limitations do not apply to the resurrection. However, I do recognize that this is my personal belief, so Vonna in Illinois is allowed to have her own beliefs - Keep your husband's ashes in the urn. Let the children know that they may fight over the ashes once you are gone, and make sure you have this covered in your estate plan.

Cartucho answered...

If God organized matter and created the universe in 6 days, why would anyone think he couldn't organize the remaining matter of a cremated deceased person for the purpose of resurection.

In my case, a part of my wifes ashes were given to her children (my stepchildren). I have a very close relationship with them partially because I took into account their feelings. I don't think I could have it any other way.

Minnicente answered...

When my mother died 5 years ago she was cremated. My father insisted upon keeping her ashes on display in the dining room of the house that she loved and poured her heart and soul into in a box that he purchased from the funeral home. Since then he has taken two girlfriends hardly on the same level as my mother on tours through her magnificent home. Both have something in mind, he romances them on my mother's family money, yet refuses to bury her ashes. One of these women, whom my mother intensely disliked because she was the town courtesan who hid behind her position as church secretary. She went through a bitter divorce and her daughter tried committing suicide four times. Still, my father, who is not the best judge of character, insists that she is "highly respected," or at least according to his lawyer friend who made my father his BEST friend while planning his estate. So here are my mothers ashes on display in the dining room as my father marches his girlfriends through her house. He wants his cake and to eat it too. I am my mother's daughter. I live in Massachusetts. Do I really think that my mother would approve of what is happening to her ashes? I am certain that she died to get away from my father and still the poor thing can't escape him.

Minnicente answered...

Another response to Barb Pierce. I know of women who watch the obituaries to see what man has been recently widowed. In the case of who my father has taken up with, this woman, Dorothy, took up with a man named Herman in town before his wife's body was cold. My mother knew what this woman was about, and nicknamed her, many years before she died, Fritzi Ritz after the comic strip character. There are women who are after a pocket book and have no concern whatsoever for what the past-life may have been for a man who, without a wife who had intelligence and vision, would have been nothing. So she is to reap the benefits while the children who have lived the legacy are left out in the cold?

Any woman with any integrity who looks for a companion does not want marriage. If they want marriage look out, there is a reason for this. Period. The situation I and my sister find ourselves in now, at middle age, is frightening and disgusting. Our father has onset of dementia but nobody sees it yet, except for a few. He has become the most repuslive, womanizing old fool any prospective dame could hope to find, with millions at stake. Go figure. This issue can not be candy coated. And woe to the selfish, narcissistic woman who only thinks of herself and what she wants to do with the remains of some man she had hardly anything to do with. May she broil in hell.

A fellow caregiver answered...

My partner/husband recently passed away and was cremated. Upon his death, none of his children/daughters from a previous marriage wanted anything to do with the funeral let alone be around during his final hours and so I was left to arrange everything. Special Photos and favourite music of his past was not available as they were reluctant to provide it. They refused to turn up for the funeral. I took the initiative to organise everything including a simple obituary that the Funeral directors assisted me with and photos of the time I was with him (23 years). I only saw them about 10 times total during the 23 years. His youngest daughter under the directive of her sisters told me to split the cremains as they were not turning up for the funeral couple of days earlier. This all became apparent because before I knew what was going on, they all turned up in their party frocks who knew very little about the man as they left home in their teens. Out of respect, the cremains were split for memorial service but they had no intentions of returning it. However his Will stated that the cremains are to be returned to his homeland to be scattered. Which I will be doing - only the half I got. What is the law???? given that I am the executor and one of his children is a coexecutor. Have I really done the right thing... Two months later, they wanted me to pay for the entire funeral from my personal expenses and they refused to return the ashes. I was left bit distraught over the trickery and also the entire saga of preparing and they attempting to stop a funeral on accusations. Out of respect, the ashes were given to them to perform their own memorials. The funeral expenses were covered by his estate as he had written in his Will. At the wake, I was handed a list of items that was promised to them...according to their father. My Dearest Love has gone and he has been the most important and will be the most important person in my life. God please look after him and please make sure he finds the source of the heavenly white light. Each situation is different.... new woman/man accused of disinheriting the family and families neglecting the parent when he/she has been looked after by a loving person. This is really human nature at its worse. When the opportunity lends itself for each of us to be respectful and honourable during a loved ones lifetime, this is often abused. When another person comes to help, they are accused of being trying to win the love, steal his/her money... I was put in this situation as the man I loved was barely making ends meet when we first met and was financial and emotionally at his lowest point. I gave him everything including part of a house I had and he was the first person I ever loved and my first love.... I've always believed in karma and doing the right things with love and respect goes a long way.

Minnicente answered...

The diverse ideas shared here having to do with cremains helps me to reach one conclusion: Ashes are only symbolic and can not possibly be imbued with the spirit or soul of the departed.

I once worked in the gardens of a widely known museum, where people routinely dumped human cremains, identifiable because of the tags from the crematory still mixed in with the dust. Yes, it was creepy to find a pile of human ashes in the gardens, but in every religion we are somehow reminded that we come from, and return to - dust.

Holding on to ashes is an act of control. With death, the journey of this lifetime, however we have lived it, is over. So, by hoarding ashes, are we trying to prevent the dead from continuing on their soul's journey? How do ashes help us to grieve?

A fellow caregiver answered...

My grandmother has my mother's ashes. I'm legally next of kin and she knows it. She refuses to give me her ashes. Can I pursue legal action against her for that?

Ca-claire answered...

Pursuing legal action against a relative, especially an older relative, is a lose-lose proposition. Tell your Grandmother that you respect her wishes to have your Mother's ashes, but that once she no longer feels the need to keep them, you would like to have them. She may opt to give them to you voluntarily. Remember, your Grandmother lost a daughter. You lost a parent, but a Mom's tie to a child is very strong.

Chancy answered...

I have read some of the questions and answers on this site. I can say first hand as I am a daughter of my father who did re-marry. I also have worked in the Funeral Industry and have encountered many situations. I can first say this we are all Human Beings with all the same emotions, and we want the same love and respect. When I was 15 years my parents divorced as they did fight and it was not a happy home life. However I believe each and everyone of us want the traditional natural Mother and Natural Father unless of course you were adopted and then the parents had the opportunity to choose the child to love and guide. I don't believe under any situation that a blended family whether you sugar coated or not is the same. Just like when you more from relationship to relationship you take along all the former baggage. You may change the resident's address and location but part of you goes right along into the "knew relationship" Love comes in many different forms and the love you have for your parents is not the same love that you do experience for your children. One former co-worked once said to me" Men and Women come and go but are children are forever". She was so right on with this statement! If either a man or women makes a choice to remarry of course the wife or husband would now be their knew spouse and they would be each other's mate and first concern. When you have children and you have been a part of their lives, they have lived with you at one time or another and have the bond with the parents they also must be considered. I can speak first hand as when my father re-married his wife had children by her first husband and we were always made to fill separate. My sister and I to keep peace always went along with the program just to keep peace and not cause problems. I believe however it is a Mother's and Father's responsibility to state the facts up front that they do love the new spouse and will consider all feelings however the children were apart of the former life and should not be made to feel as a threat or a contest. I at one point in my life when I turned 19 I moved to another state with my father and his wife and paid a third of everything which included rent, electric, water, cable etc. I had my own room and every time her relatives came to town I was to give up my room and move to the living room. I at one time was very overweight and she would load my plate up to the max to always make me feel bad. She always said how fantastic her family was and what great jobs and money they made. She always made my daughter feel less then adequate and she never measured up. I since had surgery and lost over 200lbs and didn't have they money for plastic surgery but I was very proud of what I did accomplish as many people can't and won't do this. She would still make remarks about my weight and looks to get under my skin. I lived across the state but within the state so it was only a approx. two hour drive and when my father turned 70 years old and she had a party for him I wasn't invited and was sent a photo of his cake in the mail as she did have a party for him. My sister and I were always told more than once how anything she had was being left to her children even a dollhouse that my father made for her was going to her daughter. My sister and I never asked for the dollhouse or anything matter of fact. When I had my daughter at the time I was on the same coast and once she was sick at daycare and I did pay daycare and providers to care for her not to ask or bother anyone. I called my father as I was at work and unable to leave as she was ill and had a fever and asked if he could pick her up? His reply was "Is she really that sick"? I in fact hung up on him as I had never asked for his help with her and I was very hurt by this. However my sister and I knew the drill and respected her wishes. We stayed In the background not to rock the boat. It was clearly understood that she told him what to do, it was his fault for not standing up to her and stating the facts. You can have all kinds of love and when you have envy, hatred, or feel you are in competition you have a poor character and can't define who you are and your motives. It Is the attitude of the heart that defines who you are and the person you become. She was very insure about herself and how to make others feel less then she was. My father died in 1999 and at first I kept some kind of relationship with her then as the years passed and went on I decided that I didn't have to be talked to this way anymore. My sister continued with the relationship with her on a more regular basis which of course was her choice. She had been sick for quite sometime and she did die on Thanksgiving this year. I was always taught to do the right thing and turn the other cheek. I had mixed feelings and emotions as I never had the chance to tell her what I felt and how she made me feel. I felt good to go and visit with her before she did die. My daughter and her future husband did also go. My reason to explain all of this is we don't get second chances. When words are spoken and put our there they can never be taken back. You words are powerful and they do have implications, the choices that you do make in life just doesn't effect your life it also effects everyone right along with you. Love is not about be competitive or putting something over on someone. You can't buy love it comes freely. Money doesn't define your character it gives you options and makes you cautious. I have seen some real ugly in the Funeral Industry once the love one was now gone. It doesn't matter who is first or last it matters in the middle the dash that's what define your life and character. Being hurtful doesn't get you anywhere just makes you less of a person and the real one you are hurting is yourself. I chose to forgive not for her but for me as she didn't have a clue as most people for their own selfish gain never thinks of the other person. We only have one to answer to when we leave this life and that is all that matters but your legacy is who you were and what you did and how you effected those around you. Did you love did you make any memories? Did you touch someone's life in a positive way? Were you the better "Human Being"? Did you honor your Mother and Father? Did you show love to your children? Did you make a difference? Did you have a positive or negative impact? Remember it's not just about you, love is unconditional and you can't put a price tag on it. It's not about yours, mine, and ours, if you did the right thing and lived the right way the master see's everything and you can't run from him. He is just and he will make all the wrongs right. Love doesn't have to be divided or cut-up into pieces their is plenty to go around! When we least expect it a wrong will be made right might not be I the same way but God is just and he does take care of all matters. Show love and mercy and be the change you want the world to see.

Alice oregon answered...

My brother died recently. In the last days before he passed and the day after, (his mother and siblings) were told by his wife that they would take a trip together to the river where he wanted his ashes sprinkled. This was somewhat comforting to us, especially since this was what my brother wanted. Then, a couple days later, his wife changed her mind and buried his ashes in their yard. This was devestating to me and has greatly added to my grief. It feels like my brother's immediate family have been pushed out of the process. Even more worrisome, is the belief that his mate will fade from our lives in fairly short order and may well sell the house. And since my brother did not elect to have a funeral, this trip to the river was really important to our family. I now just feel like my brother has been disappeared. I keep trying to come up with a comforting alternative for our family; a ritual of some sort, to mark his passage. I'm so sad that his wife has denied us so much and that she doesn't think we matter, especially since we were so close. I had never heard of a spouse disregarding an entire family in this way. We have no other choice but to get through it. I'm deeply saddened.

Loveygirl answered...

My father-in-law has just passed away on November 30 2015. And he was cremated and his girlfriend keep the ashes. But my husband wanted the ashes but she keep him away from it, and that is his dad. She took it apond her self to make all the dececions without talking to him family first. I and everyone else in my family told her she can't do that, you are not part of the family. But she thinks since she was with him for 9 years she thinks she gets everything. But I told her you don't get everything you are not part of the family. His belongings goes to his family. But she took it apond her self and tried to get everything. But my husband put a stop to that. And she even tried keeping the ashes from my husband and that is his dad. So she tried to steal the ashes, she can not do that. What should I do?

A fellow caregiver answered...

My aunt has my mothers ashes, she refuses to give them to me or my brother. I'm next of kin, an I want her urn, what are my options?

A fellow caregiver answered...

My dad passed a couple of days ago. I'm next of kin but I'm not 18 yet, I will be soon. I have a daughter, I live on my own, I'm practically an adult. My grandparents said they would take care of everything in my best interest since he is my father and I'm not able to get his things not being 18. Well we just had a falling out & now I'm not even allowed to go to his funeral, not allowed to say goodbye to my own father.. what can I do? I don't think it's right that I don't get his ashes or his things just cause I'm not of age

A fellow caregiver answered...

My brother passed away in 2009. His wife has legal rights to his cremains and by following his wishes, sent his ashes to me to be interred next to his mother. Part of the ashes were to go to his daughter for her necklaces and the remaining cremains were to be interred. I followed these wishes to the letter. After his daughter "lost" her portion of the cremains, she went to the cemetery and removed my brother from his resting place without the knowledge or consent of the legal owner of the cremains or the cemetery. There are laws in place in my state once a person's cremains have been placed in a cemetery. You need a court order to remove them. His daughter did not follow that law. She did participate in the ceremony to place him in the cemetery. I just think it is sad that my sister-in-law who had planned to come visit will now only find nothing instead of her husband.