A decision filed by the Iowa Supreme Court on Friday, September 14, 2007, is creating concern within the probate practice community regarding who is going to have the last say where a deceased spouse will be buried.
The Supreme Court holds in effect that a surviving spouse may determine where the deceased spouse will be buried. In April 2005 Alita Stark obtained a permit from the Iowa Department of Public Health to disinter the body of her late husband, Joe, so that he could be buried in the same cemetery as his parents. Joe Stark died February 15, 2005, and was buried in a cemetery near plots owned by his first wife and his children. Stark's three children objected. A Washington County, Iowa, district court judge entered an injunction preventing Alita Stark from proceeding. The district court judge felt that the feelings and desires of the three children should be considered. The Supreme Court overturns the district court decision finding that under the permit provisions of the statute, there are only two requirements for a permit to disinter a body: the surviving spouse, or in the absence of a surviving spouse, the next of kin, agrees, and the purpose for disinterment is reburial or autopsy. The Court also states that the plain language of the statute allows a surviving spouse to disinter a deceased spouse’s remains without regard to motives or objections by others.
The statute under which Alita Stark proceeded, section 144.34, Iowa Code, allows a body to be disinterred either (1) by obtaining a permit from the Iowa Department of Public Health (which she did) or (2) by requesting a court order. The procedure to obtain a court order to disinter a body is more complex. Under that portion of section 144.34, the Supreme Court notes that a court can order disinterment only for purposes of autopsy or reburial and "'only upon a showing of substantial benefit to the public.' Id. Further, disinterment is only allowed by court order when 'reasonable cause is shown that someone is criminally or civilly responsible for such death, after hearing, upon reasonable notice prescribed by the court to the surviving spouse or in the spouse’s absence, death, or incapacity, the next of kin.' Id. Finally, the court must give '[d]ue consideration . . . to the public health, the dead, and the feelings of relatives.' Id."
Some members of the Iowa State Bar Association probate section have expressed concern about the practical effect of the Court's decision. Some contend that the decision makes the case for the Iowa General Assembly adopting a bill that would allow the deceased to name a person who would decide where the deceased would be buried. The proposed legislation would put the designee first, overrideing any
presumption of a spouse having super-priority. Another member of the probate section commenting on the Supreme Court decision observes, ". . . [I]n effect Dad will be a bouncing ball as I assume when the spouse dies the children step in as next of kin and can move Dad back -- then who knows where the grandchildren will decide to have him buried."
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