Ashes and Evidence

Hamilton Somerville, age 80,  died at his Virginia home in November 2001.  His second wife Donna, a former hospice nurse, was at his side and asked rescue workers to stop trying to resuscitate him.  She then gave instructions to have him cremated immediately.

Hamilton’s daughters sought an emergency order and stopped the cremation.    A later autopsy showed large amounts of morphine, codeine, oxycodone and promethazine in his system.  

Donna was tried for murder, but the Judge ruled the circumstantial evidence was not sufficient to convict her.  Hamilton’s daughters sued Donna in civil court for wrongful death, and won. 

Had the cremation gone forward as Donna instructed, there would not have been any evidence of the overdose.   In many states, the surviving spouse’s instructions on burial control controls the process.

But not in Texas.  Since 2009, the law has permitted the executor of the decedent’s will or the decedent’s next of kin to file an application to stop a cremation or burial ordered by the surviving spouse. 

The court has to find that there is “good cause” to believe that the surviving spouse in the principal or an accomplice in a wilful act that resulted in the decedent’s death.     The order is issued after notice and hearing, which means that the surviving spouse has an opportunity to testify. 

 Of course, the surviving spouse could invoke the 5th Amendment and refuse to testify.  In a civil case, the Judge can then hold the refusal against the surviving spouse. 

 On the criminal side, the surviving spouse loses the right to decide on burial or cremation if an indictment has been filed charging the spouse with a crime involving family violence against the decedent.  

So if you suspect foul play in the death of a relative, act fast.