Court Creates a Cremation Conundrum: Decision Hits Funeral Homes Hard

A citizen holding the cremated remains of their loved one.

Cremations are hot, but a recent decision by the Texas Supreme Court may have a chilling effect on the popular funerary choice.

In 2016, for the first time in U.S. history, cremations accounted for more than 50 percent of funerals.

Some experts estimate that the cremation rate will reach 78.8 percent nationwide by 2035.
So what did the Texas Supreme Court do that could dent the increasing cremation market? Here’s a hint: it’s all about the money.

Cremation Conundrum

The case involved the untimely cremation of Sharlene Lobban, a single mom who was 52 years old when she died unexpectedly of a heart attack. Sharlene had been living in Brownwood with her 14-year-old son. She had another son, Cody, who was an adult and living somewhere in the wilds of Tucson, Arizona.

Sharlene’s 2 sisters drove in from Lubbock the day she died and met with the funeral home people. All of them tried, unsuccessfully, to reach Cody. Because Sharlene’s sisters had to get back to work, they instructed the funeral home to do a quick cremation of Sharlene’s remains. The siblings scattered her ashes, held a memorial service 2 days later, and drove back to Lubbock.

Cody learned about his mother’s death three days later. He had no complaints about his mom’s cremation, the spreading of her ashes, or the memorial service. He was mightily upset, however, that he had been denied the opportunity to pay his last respects to his mother. So he sued the funeral home for mishandling of a corpse, and he asked to be awarded damages for his “mental anguish.”

The funeral home argued that it could not be sued because it did not have a contract with Cody. The Texas Supreme Court buried that argument with a few pithy observations.

Quasi-Property

The court noted that “historically, the bodies of deceased persons…have held a unique status in the law.” While a dead body is not property, the next of kin have a “quasi-property” right to possess the body and control the burial. The court decided that “the relationship between a person disposing of a decedent’s remains and the next of kin is special, even without a contract.”

There was no question that Cody, as the decedent’s adult son, had a superior right to determine how Sharlene’s remains were to be handled. The Court held that, because of the special relationship, he could sue the funeral home for his mental anguish damages.

How could this decision adversely affect the trend toward cremation? Because now funeral homes will not be willing to cremate remains without getting written approvals from anyone who could sue them. If there are 5 adult children, then the funeral home will require 5 signatures for each decision.

There is an easy solution. In Texas, a person can sign an Appointment for Disposition of Remains. It gives instructions for the disposition and designates a person to serve as agent. The funeral home is not liable for carrying out the instructions. And the issue is laid to rest.