Who Controls a Parent’s Remains in New York After Divorce? Legal Rights of Adult Children
By Barry Janay, Esq.
The Law Office of Barry E. Janay, P.C.
When a loved one passes away, questions about who has the legal right to control their remains can become complicated—especially when families are blended or parents are divorced. At The Law Office of Barry E. Janay, P.C., we frequently advise clients in New York and New Jersey on matters of estate administration, probate, and the sensitive issue of disposition of remains.
If you’re an adult child seeking to obtain your father’s ashes from your birth mother after your parents’ divorce, here’s what New York law says about your rights.
Understanding New York’s Hierarchy for Disposition of Remains
New York Public Health Law § 4201 establishes a clear order of priority for who controls the disposition of a decedent’s remains, including cremated ashes. The law is designed to minimize disputes and provide clarity during a difficult time.
The statutory order is as follows:
-
Person designated in a written instrument (such as an “Appointment of Agent to Control Disposition of Remains”).
-
Surviving spouse (unless divorced).
-
Surviving domestic partner.
-
Adult children (18 years or older).
-
Surviving parents.
-
Adult siblings.
-
Other relatives or individuals as specified in the statute.
You can read the full text of NY Public Health Law § 4201 for more details.
What Happens After Divorce?
A divorce has a significant impact on who has the right to control a decedent’s remains. Once divorced, the ex-spouse is no longer considered the “surviving spouse” under New York law, unless the decedent specifically named the ex-spouse in a written instrument after the divorce.
Key Point:
If your father did not appoint anyone in writing and was divorced at the time of his death, the right to control his ashes passes to his adult children.
The Role of Adult Children
If there is no surviving spouse, domestic partner, or designated agent, New York law gives the right to control the disposition of remains to the decedent’s adult children. If there are multiple adult children, the law requires a majority of those “reasonably available” to agree on the disposition.
If you are the only adult child:
You have the sole legal right to decide what happens to your father’s ashes.
If there are multiple adult children:
A majority decision is required. If you and your siblings cannot agree, the matter may need to be resolved in court.
What If the Ex-Spouse (Birth Mother) Has the Ashes?
If your birth mother (your father’s ex-wife) is in possession of the ashes but you have legal priority, you may need to:
-
Present proof of your relationship (such as a birth certificate).
-
Provide a copy of the death certificate.
-
Work with the funeral home or crematory, who are required to follow the law.
-
Seek legal intervention if the ashes are not voluntarily relinquished.
Funeral directors are protected from liability if they act in good faith according to the instructions of the person(s) with legal authority (NY Public Health Law § 4201(7)).
Resolving Disputes
Disagreements among adult children or between children and other family members can be resolved through an expedited judicial process in New York. If you anticipate a dispute, it is wise to consult with an experienced estate attorney.
Practical Steps for Adult Children
-
Determine if a written designation exists.
-
Confirm your legal relationship and status.
-
Communicate with other adult children (if any).
-
Contact the funeral home or crematory with documentation.
-
Seek legal counsel if the ex-spouse refuses to relinquish the ashes.
Compassionate Guidance for Families
At The Law Office of Barry E. Janay, P.C., we understand the emotional and legal complexities families face after a loss. Our core values—Integrity, Commitment, Insight, and Results—guide us in helping clients navigate sensitive estate and probate matters with empathy and expertise.
If you have questions about the disposition of a loved one’s remains, or need assistance with estate administration or probate, contact us today for a confidential consultation.
References:
Barry Janay, Esq. is the founder of The Law Office of Barry E. Janay, P.C., serving clients in New York and New Jersey with a focus on estate planning, probate, and administration.
This article is for informational purposes only and does not constitute legal advice. For advice regarding your specific situation, please consult an attorney.
