The recent decision of the Ohio Court of Appeals in the case of In re Disinterment of Jean E. Swing, 2014 WL 7004788 (12/12/2014) deals with cremated remains and a disinterment issue. While the decision is based on the laws applicable to Disinterment in Ohio, it is the author’s experience that the standards applied are similar to the legal standards in many states.

  The minor son (Son) of the deceased requested a probate court to grant an order of disinterment for the cremated remains of his father from the grave space of his grandmother. The request was filed on the behalf of the Son by his mother because he was a minor. The father had died in 2007 and at that time his remains were cremated and retained by his grandfather and grandmother.

  When the Son learned his father’s cremated remains were at his grandparent’s house he requested they be given to him. The grandmother refused. Subsequently, she died in 2009 and the father’s cremated remains were buried with her. The opinion indicates that a funeral home employee placed the cremated remains in the grandmother’s casket at the request of the Son’s uncle. This was done without the knowledge of the cemetery and in violation of the cemetery’s rules.

  Three years later a cousin advised the Son that his father’s cremated remains had been buried with his grandmother’s remains. The Son initiated the Petition to the Probate Court. The Son’s grandfather and uncle opposed the Petition. The Probate Court issued a disinterment order and the grandfather and uncle filed the appeal.

  The Appeals Court then analyzed the facts and the applicable law to reach its conclusion. One of the factors considered by the Appeals Court was a prior decision of another Ohio Appeals Court. In addition the Ohio Legislature had subsequently enacted a Disposition of Remains Law (DORA) that was similar to laws of that type previously discussed by the author in this column.

  The factors considered by the Appeals Court were whether the Probate Court had considered the following factors based on the previous Appeals Court Decision:

1.      The relationship of the son to the deceased;

2.      The relationship of the objecting parties to the deceased.

3.      The wishes of the Decedent;

4.      The conduct of the Son;

5.      The conduct of the people not permitting the Son’s request;

6.      The length of time between the interment and the complaint:

7.      The reasons proposed in favor and against the disinterment;

  The Appeals Court reviewed the record and concluded the Probate Court Judge had considered the previous factors in reaching its decision.

  The next issue considered by the Appeals Court was whether the Grandfather and Grandmother had exercised their rights under the DORA so the claim by the Son was moot. It should be noted that the Appeals Court analyzed the DORA and it is similar to the DORA Acts enacted in other states.

  DORA provided that a surviving child had priority over parents, but the grandfather argued that the surviving child in this situation was a minor and therefore not eligible to have priority. The Appeals Court rejected this argument on the basis that the priorities were not absolute requirements but subject to a court’s determination using equitable standards. In this case, the Appeals Court determine that there were equitable reasons for allowing the Son to have the cremated remains of his father.