Last Rights

The Delaware Chancery Court has determined that the majority rules in a dispute among four sibling over whether the cremate or bury their late mother.

K.G. wishes to cremate her mother’s remains, with the ashes to be distributed among the four siblings; the Majority wishes to inter the body near relatives in Middletown.

Burial 3, cremation 1.

This expedited matter is before me on a dispute arising from the New Castle County decedent’s estate of Ms. P.C. The unfortunate litigation is among four siblings (the “Siblings”), children of the decedent, concerning which of them should control the disposition of the decedent’s remains. K.G., who holds some authority over the estate under a small estate affidavit (an “SEA”) issued by the New Castle County Register of Wills, would like Ms. P.C.’s remains cremated. S.C., who also holds an SEA, issued a few days after the SEA held by K.G., wants to bury her mother’s body, without cremation. The remaining two siblings, R.P. and K.B., agree with S.C. (collectively, the “Majority”). The body is currently held at Congo Funeral Home in Wilmington; the reason for expedition is obvious.

An SEA is not empowered as is a PR

I find the receiver under an SEA to be sufficiently dissimilar to an appointed estate administrator, in both manner of appointment and duties, to not come within the ambit of Section 264(a)(3). Therefore, there is no appointed personal representative or administrator under Section 264(a)(3). In that case, Section 264(a)(4) controls; decisions as to the remains are under the control of a majority of the decedent’s adult children. Here, that decision falls to S.C., R.P., and K.B., the Majority. Those Siblings desiring burial rather than cremation form the majority, and given these facts and under our statute, their decision must prevail.

Habeas corpus

the Majority has the right to decide how Ms. P.C.’s remains will be disposed. The exceptions are granted. An order is attached, directing the Congo Funeral Home to release the remains to S.C., R.P., and K.B.

Good thing it wasn’t a 2-2 tie. (Mike Frisch)