Who has a legal right to my father's cremated remains?

A fellow caregiver asked...

My father's cremated remains are with my stepmother. In the event of her death, would I have legal right to them? She has already told me that they would go to her daughter, my step-sister. Does she have any legal right to them since she is not his biological daughter? I am a New York resident.

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.

You raise a very interesting question—and one that is not squarely addressed by the laws that regulate cremations and burials.

New York law, like the law in most other states, sets out a hierarchy of who has the right to control how to dispose of a person’s cremated remains, or cremains. In New York, that right goes first to the person the deceased has indicated in writing—which doesn’t sound as if it applies in your case. Second in line is the surviving spouse, which I assume is your stepmother. So she has come by your dad’s cremains rightfully.

Beyond that, however, the law is silent—although there have been some cases that have allowed a person to direct who should get cremains in a specific will provision.

The best way for you to resolve the situation may be to make a personal plea to your stepmother—or to your stepsister after her mother has died. You can hope that your stepsister would understand your interest in having this reminder of your father.

If she was close to your father, or just stubborn about handing over the cremains, you might suggest dividing them between you, which is a solution that works in some families. Or, as an alternative, you may be able to agree to bury the ashes or have them interred in a mausoleum so that all survivors could come to a particular site to visit them.