Dead Bodies; Release to Spouse or Next of Kin Suspected

Subject:

Requested By: Page Hudson, M.D. Chief Medical Examiner

Question: Should the Chief Medical Examiner, after performing his duties as required by law, release the body of the deceased to the spouse or next of kin who claims the body for final disposition even though he or she may be suspected of, arrested for or indicted for a criminal act in connection with the death of the deceased?

Conclusion: Yes.

"The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next or kin, and when the widow was living with her husband at the time of his death, her right to the possession of the husband’s body for such purpose is paramount to the next of kin." Floyd v. Atlantic Coastline Ry., 167 N.C. 55, 57, 83 S.E. 12 (1914). "Upon the death of a husband or a wife, the surviving spouse has the primary right to the custody of the body for burial as well as the preparation therefor. (Citations omitted.) Our law recognizes that the next of kin has a quasi-property right in the body — not property in the commercial sense but a right of possession for the purpose of burial — and that there arises out of this relationship to the body an emotional interest which should be protected and which others have a duty not to injure intentionally or negligently. The rights of one legally entitled to its custody are violated if another unlawfully withholds the dead body from him. . . ." Parker v. Quinn-McGowen Co., 262 N.C. 560, 561, 138

S.E. 2d 214 (1964).

Chapter 31A, Article 3, entitled "Willful and Unlawful Killing of Decedent," specifies that a "slayer" is barred from testate or intestate succession and other rights. "Slayer" is defined by G.S. 31A-3(3) to include a person who has been convicted of, plead guilty to, or tendered a plea of nolo contendere to a charge of the willful and unlawful killing of another person. Suspicion, arrest or indictment for such offense is insufficient to bar the person from such rights. Furthermore, the Article does not refer to the right to possession of a dead body for the purpose of burial. It is our opinion, therefore, that the Article does not apply to the right to possession of a dead body by a spouse or next of kin who is suspected of, arrested for or indicted for the willful and unlawful killing of the decedent.

However, as provided in G.S. 31A-15, the Article does not abrogate the common law with respect to "acts not specifically provided for." See Quick v. United Benefit Life Ins. Co., 287 N.C.

47, 213 S.E. 2d 563 (1975). "It is a basic principle of law and equity that no man shall be permitted to take advantage of his wrong, or acquire property as the result of his own crime." Lofton v. Lofton, 26 N.C. App. 203, 209, 215 S.E. 2d 861 (1975). Even under these long-accepted principles, it must be established (in accordance with constitutional principles of due process) that the person has committed a wrong.

As a practical matter, final disposition of a dead body must take place within a matter of days after death. Although embalming and refrigeration may postpone the necessity for final disposition until judicial proceedings are complete, interference with the prompt and proper disposition of the body is a violation of the quasi-property right. See Parkver v. Quinn-McGowen Co., supra. Adherence to established priorities for possession of a dead body also "(avoids) unseemly controversy over the remains of deceased persons." Tkaczyk v. Gallager, 222 A. 2d 226, 227 (1966).

It is therefore the opinion of this Office that the Chief Medical Examiner, after performing his duties as required by law, should release the body of the deceased to the spouse or next of kin who claims the body, for final disposition even though he or she may be suspected of, arrested for or indicted for a criminal act in connection with the death of the deceased.

Rufus L. Edmisten Attorney General

Robert R. Reilly Assistant Attorney General