Death Issues
Form for Notice to Law Enforcement for Removal of Unclaimed Human Body
Autopsy, Funeral Decision- makers, Medical Donation, and Financial Responsibility
Va. Code § 32.1-285 permits the Chief Medical Examiner, his designees, and circuit courts to order autopsy procedures. In cases involving children, and especially sudden infant death syndrome, an autopsy is required. Va. Code § 32.1-285.1.
Voluntary autopsies are more typical. The persons entitled to authorize them are the same, and in the same priority, as those who might consent to the final disposition of the remains (see below), stated in the statute, Va. Code § 54.1-2973 as follows:
(1) any person designated to make arrangements for the disposition of the decedent’s remains upon his death pursuant to § 54.1-2825
(2) the spouse;
(3) an adult son or daughter;
(4) either parent;
(5) an adult brother or sister;
(6) a guardian of the person of the decedent at the time of his death; or
(7) any other person authorized or under legal obligation to dispose of the body.
II. Claimed Bodies: Va. Code § 32.1-309.1, Priority of Funeral Decision Makers, or Next of Kin (see 32.1-309.1 Definition incorporating § 54.1-2800).
“In the absence of a next of kin, a person designated to make arrangements for the decedent’s burial or the disposition of his remains pursuant to § 54.1-2825, an agent named in an advance directive pursuant to § 54.1-2984, or any guardian appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 who may exercise the powers conferred in the order of appointment or by § 64.2-2019, or upon the failure or refusal of such next of kin, designated person, agent, or guardian to accept responsibility for the disposition of the decedent, then any other person 18 years of age or older who is able to provide positive identification of the deceased and is willing to pay for the costs associated with the disposition of the decedent’s remains shall be authorized to make arrangements for such disposition of the decedent’s remains.”
§ 54.1-2800 states that “next of kin” mean”[s any of the following persons, regardless of the relationship to the decedent: any person designated to make arrangements for the disposition of the decedent’s remains upon his death pursuant to § 54.1-2825, the legal spouse, child aged 18 years or older, parent of a decedent aged 18 years or older, custodial parent or noncustodial parent of a decedent younger than 18 years of age, siblings over 18 years of age, guardian of minor child, guardian of minor siblings, maternal grandparents, paternal grandparents, maternal siblings over 18 years of age and paternal siblings over 18 years of age, or any other relative in the descending order of blood relationship.”
Funeral Powers Designation Pursuant to Va. Code § 54.1-2825
Financial Caveat for Next of Kin Claimants
There will be times in which the next of kin agrees to take charge of a body but is unable to pay the costs associated with the final arrangements.
Va. Code § 32.1-309.1(D) provides that “in cases in which a dead body is claimed by the decedent’s next of kin but the next of kin is unable to pay the reasonable costs of disposition of the body and the costs are paid by the county or city in which the decedent resided or in which the death occurred in accordance with this section, and the decedent has an estate out of which burial expenses may be paid, in whole or in part, such assets shall be seized for such purpose.” (Emphasis supplied.)
This is a limited exception and applicable under another statute.
The only mechanism for public payments of a claimed body is found in Va. Code § 32.1-309.2, which provides that when there is a prisoner or mental patient in custody at the time of death whose body is claimed by a person “financially unable” to pay final costs, a public entity pays these expenses.
There is no mechanism by which a city, county, or governmental entity other than VDOC or VDBHDS is charged to pay the final expenses incurred by a claimant who claims the body.
In other words, despite Va. Code § 32.1-309.1 (D), there is no financial obligation of the Commonwealth for expenses incurred by the next of kin claiming the body. Next of kin will bear the burden of these final expenses.
In the usual case, the cost of a funeral is a charge against the estate. The executor may make a decisions when there is no other person who has done so. Next of kin are also authorized to bind the estate of the decedent for these expenses, Va. Code § 64.2-512. However, unlike public payers who may “seize” assets of the decedent to discharge these expenses under Va. Code § 32.1-309.1 or 2, next of kin will have to administer the estate of the decedent to hope for reimbursement, and unlike the “seizure” for such expenses, are subject to other expenses ahead of their claim, Va. Code § 64.2-528, at least to the extent that more than $4,000 is expended.
III. Unclaimed Bodies, Unidentified Bodies, and Bodies of Prisoners and State Mental, Patients Claimed By Financially Limited Claimants: Va. Code § 32.1-309.2.
When the primary law-enforcement agency [the police department or sheriff’s department] cannot identify and notify the next of kin of the decedent within 10 days of being contacted by the facility / person having initial custody of the body, or the notified next of kin fails or refuses to claim the body within 10 days of the notice of death, the law-enforcement agency is required to notify the City or County attorney of the jurisdiction in which the person / institution having initial custody of the body is located. If there is no such attorney, the law enforcement agency notifies the prosecutor (the Commonwealth’s Attorney).
The City, County or Commonwealth’s attorney “shall forthwith and without delay request an order to be entered by the court within one business day of receiving such request” request an order authorizing transfer of the body by the initial custodian to a funeral home for final disposition. After the order is entered, the initial custodian of the body transfers its custody to the funeral home under the terms of the order.
Who pays for the disposition depends upon the residence or status of the decedent in life. § 32.1-309.2 (A).
For a Virginia resident not confined to a penal or mental institution at the time of death, the county or city in which the decedent resided at death is responsible.
For a non-resident of Virginia at the time of death, the county or city in which death occurred is responsible.
For a decedent whose residence cannot be established, the county or city in which death occurred is responsible.
However, no such expenses shall be paid by such county or city until allowed by an appropriate court in such county or city.
Unclaimed bodies of prisoners are disposed of by the Department of Corrections, which bears the expenses for cremation or other disposition of the body. For a deceased prisoner whose body is claimed by a person unable to pay the cost of final arrangements, the county or city where the claimant resides is responsible for the cost. § 32.1-309.2 (B).
Unclaimed bodies of persons dying while committed to the custody of the Department of Behavioral Health and Developmental Services are similarly processed, as are the expenses for those claimed by persons unable to pay the disposition costs. § 32.1-309.2 (C).
In cases arising under § 32.1-309.2, if there is an estate out of which burial expenses may be paid, in whole or in part, § 32.1-309.2 (D) provides “such assets shall be seized for such purpose.” The Code does not state who seizes such assets, or how such assets are “seized.”
Disposition and Expense Of Bodies During Ten Day Investigation
An initial custodian of a dead body may contract with a local funeral service establishment to store a dead body while the custodian or law-enforcement agency “is engaged” in determining the decedent’s identity and next of kin, and arranging for the final disposition of the body. The initial custodian remains the “legal custod[ian]” until such custody is transferred as directed by Chapter 8.1 of Title 32.1.
Questions remaining unanswered:
- Will the initial custodian’s funeral home storage expense be paid by the local jurisdiction for unclaimed bodies?
- May the initial custodian “seize” assets of the decedent to pay or reimburse itself for such expenses? How is such seizure effected?
- Are the storage costs third priority “funeral expenses” for purposes of Va. Code § 64.2-528?
- Will a guardian or other fiduciary be protected from creditors having a superior priority in an insolvent estate (costs and expenses of administration and the family related allowances provided for in Va. Code § 64.2-309 et seq.), as provided in Va. Code § 64.2-528?
IV. Notice to Primary Law Enforcement Agency of Unclaimed Body and Request for Disposition.
V. Cases Decided Before Va. Code § 32.1-309.2
In Mazur v. Woodson, 191 F. Supp. 2d 676 (E.D. Va. 2002) the Court held that any “next of kin,” as defined in Va. Code Section 54.1-2800, may make funeral decisions. In the interest of an orderly and expeditious burial, the Court expressly rejected a “narrow hierarchy” in which the plaintiff surviving spouse was at the apex.
Grisso v. Nolen, 262 Va. 688 (2001) (“In the present case, it is not disputed that Lorraine Nolen made no testamentary provision regarding her desired final resting place and did not ‘make arrangements for [her] burial or the disposition of [her] remains’ in accordance with Code § 54.1-2825. Under such circumstances, there also can be no dispute that upon her death, the proper determination of the place of her burial rested with her personal representative, her surviving spouse, or her next of kin. Goldman, 168 Va. at 354, 191 S.E. at 631. Thus, Grisso, as her [Page 694] mother’s next of kin, was vested with the authority to determine the place of her mother’s burial.”).
Goldman v. Mollen, 168 Va. 345, 191 S.E. 627 (1937) (cases citing) (suit to compel consent to the removal of father’s body orthodox Jewish cemetery in which he lay that they might place it by the body of their mother. The father throughout his life was an orthodox Jew and was a member, officer and priest of an orthodox synagogue. His wife was an orthodox Jew throughout her husband’s life, but thereafter grew to sympathize with reformed Jewish worship and wished to be and was buried in a reformed Jewish cemetery. She wished her husband’s body to be placed by her own. The Court affirmed the trial cour holding that the decedent, an orthodox Jew, had been buried in an orthodox cemetery where he wished to be buried, and his children would not be permitted to place their father in what to him was unhallowed ground.).
VI. Medical Donation Through the Chief Medical Examiner’s Office
For further information:
State Anatomical Program
Virginia Department of Health
400 East Jackson Street
Richmond , Virginia 23219
(804) 786-2479
(800) 447-1706
Email: OCME.Anatomical@vdh.virginia.gov