Who has legal rights to cremains?

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 Answer

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.