In Kulp v. Kulp, No. 269 MDA 2006 (Pa. Super. 3/12/07), the Superior Court was given the difficult job of deciding which party could decide where an urn containing their son’s ashes would be placed.
The Trial Court ordered that the ashes be divided into two urns, and that each of the parties could decide on their own what to do with them.
After reviewing some procedural issues (i.e. whether the order was collateral), the Superior Court decided the matter, reversing and remanding the case to the trial court, with the instruction that the trial court was to follow the factors set forth in two prior matters, Pettigrew v. Pettigrew, 56 A.878 (Pa. 1904) and Novelli v. Carroll, 420 A.2d 469 (Pa. Super. 1980).
In its decision, the Court reviewed the PEF Code, Section 305, which deals with who gets to decide on the disposition of remains of a decedent. In this case, since there was no surviving spouse, the next of kin were to decide, which led to the deadlock between the husband and wife in Kulp.
The Court then turned to the Pettigrew decision, summarizing the holding as follows:
… in determining the disposition of a decedent’s remains, that each case be considered on its own merits, the wishes of the decedent and the interests of the public be considered, the rights and feelings of the surviving spouse or next of kin are paramount, and a party seeking reinterment must demonstrate reasonable cause for such reinterment.
The Court went on to review the Novelli decision, summarizing the factors to be considered in such a case as follows:
1. the degree of relationship that the party seeking reinterment bears to the decedent and the strength of that relationship;
2. the degree of relationship that the party seeking to prevent reinterment bears to the decedent;
3. the desire of the decedent, including the "general presumption that the decedent would not wish his remains to be distrubed," or a specific statement of desire by the decedent;
4. "the conduct of the party seeking reinterment, especially as it may relate to the circumstances of the original interment;"
5. the conduct of the person seeking to prevent reinterment;
6. "the length of time that has elapsed since the original interment;" and
7. the strentgh of the reasons offered in favor of and in opposition to reinterment.
The following also should be noted:
Although it discussed the issue, the Court did not decide the issue of whether the remains were "property", or whether the issue had to be decided under the PEF Code based upon an "authority" to make the decision.
In a recent newspaper article on the case, the question arose as to whether the ashes in the urn, which remained in the marital residence occupied by wife, were actually the remains of the parties’ son, or whether they had been replaced.
This is a very sad matter. The parties lost their son, and their marriage, and could not even come to resolution over this very sensitive, personal issue.