CREMATION V. BURIAL: A COMMON DILEMMA
• Under Florida Statute §732.6005(2), the disposition of a body is not a property right but a personal right of the decedent — meaning the decedent’s intent, not the survivors’ intent, controls what happens to the remains.
• Even written testamentary burial instructions are not conclusive if it can be shown by clear and convincing evidence that the decedent intended a different disposition.
• The priority statute used by funeral homes (§497.005(43)) does not control when there is a private dispute between family members — that is governed by common law.
The pivotal precedent: In Giat v. SCI Funeral Services of Florida (2020), a son sought to stop cremation of his father’s remains, claiming his father had orally expressed a wish to be buried under Orthodox Jewish custom. The court held that because both parties disputed the decedent’s wishes, an evidentiary hearing was required.
The bottom line: The oral statements about hating cremation are legally meaningful evidence — but the court will hold a full hearing, weigh all testimony, and make a factual finding about what the deceased truly wanted. The right to control disposition belongs to the decedent, not the heirs.
This seems to conform with the same reasoning stated in a recent Duval County court case: In Re: The Estate of Mildred Vann Arpen.
These matters have become increasingly commonplace. Make sure that you have your bases covered.
