A Sad Dispute

The New Jersey Appellate Division decided a “sad case” in favor of the mother in a divorced couple in a dispute, among other things, over the cremated ashes of their deceased son

Richard had ample opportunity to litigate Colleen’s alleged alienation of their son’s affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son’s eighteenth birthday. He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues. We deem those issues waived and, in turn, conclude that a plenary hearing regarding the parties conduct during the last five years of their son’s life is not required as the evidence overwhelming demonstrated that Colleen had a closer relationship with their son. We therefore hold that Colleen shall have control over the cremation remains and affirm in part and reverse and remand in part. We also provide guidance on the proper procedure to be utilized in future similar disputes.

The parties vigorously disputed the operative facts but this was not in dispute

Colleen did not advise Richard of Hendrix’s death. Richard first learned of Hendrix’s death from a third party on February 17, 2021. As a result, Richard was unable to participate in the memorial service held for Hendrix in Pennsylvania or the decision to cremate Hendrix’s remains. Instead, Colleen unilaterally made those decisions. Through counsel, Richard requested one-half of the cremation ashes, copies of all photographs of Hendrix, and one-half of Hendrix’s personal belongings, to keep in Hendrix’s memory. Colleen refused.

Guidance

We provide the following guidance for future cases involving similar disputes in intestate estates. The proceedings contesting the funeral arrangements or disposition of remains should be brought by complaint in the Probate Part, rather than by application in the Family Part. The probate judge should consider appointing a pendente lite administrator who shall investigate the facts and attempt to resolve the issues. If a resolution is not reached, the probate court shall apply the test we have adopted and determine which parent or next of kin of equal standing shall control the funeral arrangements and disposition of remains, which should not involve protracted hearings relating to the history of the parties over multiple years leading up to the death. All unresolved aspects of the decedent’s estate, including disposition of the decedent’s assets and personal effects, should likewise be brought, and decided in the Probate Part.

(Mike Frisch)