A man died in 2014 and his remains were cremated. The cremated remains were returned to his wife. The wife died in April of 2016 and her remains were to be interred in the local cemetery. Prior to the interment it was disclosed by the funeral director he had just discovered the cremated remains of the husband had been placed in the wife’s casket.

  What steps should the funeral director and cemetery take with regard to this situation?

  The first step is to check the applicable state laws. Many state laws require it is necessary to obtain the written permission of an authorizing person when cremated remains are commingled with the remains of another person. In addition, many state laws require that a funeral director or the cemetery provide the applicable state agency with information about the identity of a deceased person and the location of the final disposition of their remains. It appears that both of these requirement may have been violated.

  The second step is to obtain a release and hold harmless agreement from the authorizing person or responsible member of the family before proceeding. Obviously time will be of the essence. The release and hold harmless agreement should cover all claims by third parties and include an obligation for the releasing party to defend any claim or lawsuit.

  The author has reviewed releases and hold harmless agreements that did not include an obligation to defend. The result is that when there is a claim, the party being held harmless has to make an insurance claim or use their own attorney and hope to be reimbursed by the releasing party. Even if the releasing party has the obligation to defend it is a good idea to have the right to monitor or participate in the defense and to approve any settlement to assure there is no liability.

  If the cemetery has concerns that the funeral director was aware of the situation earlier than indicated, it might be prudent to request the funeral director to provide a release and hold harmless agreement from any liability with regard to his placing the cremated remains in the casket including an obligation to defend.