Ashes: what’s the legal position?

words: Dr Heather Conway, Senior Law Lecturer at Queen’s University Belfast and author of The Law and the Dead

When someone is buried, interment of the remains in the chosen gravesite is usually the end of the matter. With cremation, what happens at the crematorium is only part of the process: there is the issue of what happens to the ashes afterwards, and difficult questions arise in two basic situations.

The first is where the deceased’s family disagree over who is entitled to the ashes. The second is where ashes are being used as leverage to secure payment of outstanding funeral expenses. This article explores the legal position in both situations.

Families fighting over ashes

Families fighting over funerals is an increasingly common occurrence; as well as the ‘usual’ family tensions when a loved one dies, there is the growth in second or blended families and the all-too-frequent disputes between, for example adult children from different relationships or children and a new spouse or partner. Even if they agree to cremate the deceased, the fate of the ashes can become a point of conflict.

This is a contentious issue, and one that many funeral directors are confronted with when individual clients ask what their legal rights are. Like any family dispute, funeral disputes are complex and cannot always be solved by discrete legal rules – and this is especially true when the dispute involves ashes. The law here is clearer than it has been, thanks to recent legislative changes, but there are still some ‘grey areas’.

Initial release of ashes from the crematorium

The first thing is to distinguish between is who is authorised to collect the remains from the crematorium, and who has the legal right to the ashes once this has occurred.

In England and Wales, regulation 15 of the Cremation (England and Wales) Regulations 2008 allows an application for cremation to be made by the deceased’s executor or a ‘near relative’ aged 16 or over unless a satisfactory explanation is given for it being made by some other person. A ‘near relative’ is defined as the surviving spouse or civil partner of the deceased, a parent or child of the deceased, ‘or any other relative usually residing with the deceased person’. Regulation 30 in the original version of these regulations stated that the crematorium had to return the ashes to the person who applied for cremation or to someone that the applicant nominated to collect the ashes.

However, regulation 30 has now been amended by the Cremation (England and Wales) Amendment Regulations 2017 which took effect in April 2018. The changes are important, and were introduced to provide greater clarity and to improve cremation practice. Ministry of Justice (MOJ) guidance on these regulations makes it clear that funeral directors are to be familiar with the regulations, and in a position to advise families about the practice at different crematoria, whether what the applicant wants is deliverable, and any issues which may arise about the application.

So, how does this affect what happens to the ashes? Under the new version of regulation 302, the cremation authority must dispose of the ashes in accordance with the applicant’s instructions for the ashes.

These instructions can be given as part of the application for cremation (the cremation forms have been amended to include a specific section on this), or given in writing by the applicant to the cremation authority, after the cremation. So the applicant might stipulate that he or she will collect the ashes or that the ashes are to be collected by the funeral director; or that the ashes are to be interred in a particular gave, or scattered in crematorium grounds. Alternatively, the applicant might state that the ashes should be held pending a final decision; but the applicant should indicate a date or period of time by which they will have decided what happens to the ashes and notified the cremation authority in writing (the applicant should, of course, be aware that the cremation authority may apply a charge for holding the ashes after a certain period).

Where instructions were not given by the applicant, or where the ashes were not collected as instructed by the applicant (though note that there is no set timeframe here for the anticipated collection – and the MOJ guidance notes do not specify one), the cremation authority may dispose of the ashes in accordance with the newly amended regulation 30(3).

This says that ‘any ashes retained by a cremation authority must be decently interred in a burial ground or in part of a crematorium reserved for the burial of ashes, or scattered there’. However, the altered regulations also state that the ashes cannot be scattered or interred ‘unless the cremation authority has made reasonable attempts to give the applicant 14 days’ notice of their intention to do so’. The authority should write to the applicant (ideally, the letter would be copied to the funeral director), notifying the applicant that the ashes are going to be scattered or interred within 14 days unless the cremation authority is informed otherwise; so, the onus is on the applicant to notify the authority of any change of address or contact details, and to provide alternative written instructions for what should happen to the ashes.

The written instructions would need to be received by the cremation authority before the expiry of the 14-day notice period. The 2018 changes also introduce a new regulation (regulation 30(2)) which allows the cremation authority ‘ in exceptional circumstances’ to release the ashes to someone other than the applicant or the applicant’s nominee. Any decision to do so is at the discretion of the authority; and while this is not something that we would expect to see happening often, there are a couple of situations in which it might prove useful.

The first is where an applicant for a cremation has later been implicated in the death of the deceased, but refuses to permit the crematorium to release ashes to the deceased’s family. The distress caused by this is obvious, and could now be avoided.

The second, and much more commonplace, scenario is where the applicant for cremation dies or becomes incapacitated before providing instructions for the ashes.

According to the Cremation (England and Wales) Regulations 2008 Guidance, cremation authorities and crematorium managers can consider taking instructions from the applicant’s executor or the administrator of their estate where the applicant has died. Where the applicant is incapacitated, we should probably assume that it is the person with power of attorney over the applicant’s affairs, or their equivalent (though this is not entirely clear in the guidance notes).

So, this is now the position in England and Wales. In Scotland, substantively similar provisions will take effect under Part 2 of the Cremation and Burial (Scotland) Act 2016 which (subject to Parliamentary approval being given) should take effect within the next few months. Sections 51-56 of the 2016 Act deal with the handling of ashes, and again require the applicant for cremation to stipulate how the ashes should be dealt with; where ashes are subsequently not collected, the Act requires the cremation authority to take reasonable steps to ascertain what the applicant wants to happen (for example, whether the cremation authority is to retain the ashes until collection within a certain time, to retain for a further period of time, or whether the cremation authority is to dispose of the ashes). If the applicant fails to communicate this information, the cremation authority must either retain the ashes or dispose of them (s 53(6)).

However, s 54 of the Act also deals explicitly with funeral directors who have collected ashes from the cremation authority, yet the applicant has failed to collect the ashes (within the specified time) from the funeral director. Again the funeral director must take reasonable steps to find out what the applicant wants here (for example, is the applicant going to collect the ashes or should the funeral director return them to the cremation authority). If there is no response, the funeral director can return the ashes to the cremation authority under s 54(6). The onus then goes back to the cremation authority (under s 55) to ascertain the applicant’s wishes, and (failing that) to retain or dispose of the ashes.

Like the amended regulations in England and Wales, there will be more legal clarity in Scotland under the new legislation – when it comes into force.

For part 2 of this feature, click here.

Want to know more? A fully referenced version of this feature can be found in issue 207 of SAIFInsight.

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