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Kate Falconer, Trusts over Cremated Ashes, 15 Journal of Equity 283 (2021), availible at SSRN (December 1, 2021).

The “law of the dead” or the law of human remains is regarded as an emerging field of study that considers rights to physical possession of the deceased and control over their disposition. In the United States, it is an idiosyncratic area of the law that dresses the concept of remembering in positive legal protections. In memory of the living, we afford a now-empty vessel with quasi-property status to protect against disrespect or defilement. The law of the dead in the United States has developed in an inconsistent and formalistic way, arguably with the funeral industry having an oversized role in the process of rulemaking. In guiding the law of the dead toward more cohesive and forward-thinking rules, it is important to consider the way in which other countries address disputes involving human remains. Trusts Over Cremated Ashes, by Kate Falconer, published in 2021 in the Journal of Equity, considers the use of “cremated ashes trusts” by the Australian courts.

Cremation is a popular method of disposition in Australia, accounting for an estimated 65% of deaths. Comparatively, the U.S. cremation rate was 57.5% in 2021. Roughly 20% to 40% of cremated remains (“cremains”) are interred in a cemetery (either stored in a columbarium or buried) and the remainder are either maintained somewhere other than a cemetery, dispersed, or repurposed. It is not uncommon for disputes to arise over who is entitled to possess and manage the cremains, and the law is not necessarily efficient or consistent in dictating a result. Contemporary U.S. law consists of a patchwork of state statutes that overlay the common law nullius in bonus (“no property in a dead body”) rule, which provides no legal right for a decedent to dictate a preferred method of final disposition. Although some states would like to grant the decedent this right, current statutes frequently lack enforcement mechanisms.

In Trusts Over Cremated Ashes, Prof. Falconer calls attention to the emotionally layered nature of burial and disposition disputes, noting that “identifying the appropriate holder of the right to possession in relation to a particular deceased body…does little to resolve the myriad of emotional and social issues that underpin burial disputes.” Religious requirements, cultural expectations, guilt and/or grief, and family power struggles may simultaneously undergird these conflicts. Disposition of cremains through burial or interment is fairly straightforward, but alternative or less traditional disposition of cremains is not. The death services industry now provides consumers with a broad menu of options for disposition or repurposing of cremains. Cremated remains may be scattered in a dissolving water urn, placed at the base of a tree, infused into tattoo ink, sent to space, dispersed through fireworks, incorporated into a coral reef, or pressed into a vinyl record. The remains may also be stored in wall art or statuary, sports-themed urns, or wearable jewelry with keepsake compartments. Cremains may also be repurposed and take new form, such as glass keepsakes, diamonds, or pearls. Use of a cremated ashes trust by the Australian courts implicitly acknowledges that no one right-holder should have the legal authority to control disposal of cremains without consideration of the wishes of others.

Australian courts are imposing the cremated ashes trust as one legal approach to resolve disputes over disposition of final remains. These are not actual trusts created by a settlor, but rather, a trust created through a court’s power over assets (cremains) in controversy. Consequently, Professor Falconer calls into question whether the cremated ashes trust has been placed in the wrong doctrinal home by Australian courts. Courts have been characterizing the cremated ashes trust as an express purpose trust, and the author advances a compelling argument that this trust is more appropriately labeled a constructive trust. The language of trusteeship is used by courts imposing a cremated ashes trust, with the author noting that these trusts have “trust property, trust objects, a trustee, and a personal obligation on that trustee in relation to the trust property . . . [but intent to create the trust] is conspicuously absent.” Courts have a specific policy purpose in imposing these trusts, which is to prevent unconscionability in disputes over disposition. The trustee is a right-holder over the cremains, with her position arising as of the moment that cremated remains come into being—but importantly, there is no intent (express or presumed) to create the trust prior to the involvement of the court. The absence of intent precludes qualification as an express trust, and thus, it is a “remedial institution” or an example of remedial discretion used by a court that is “shaping the cremation ashes trust to fit the nature of the dispute before them.”

The author notes that her article is of “immense practical importance to the law of the dead,” and I am inclined to agree. There is little scholarship or case law that considers the rights and privileges of stakeholders in grief. This type of scholarship serves as a departure point for important conversations concerning the contemporary need for the decedent to have an enforceable right to dictate disposition. More importantly, however, Trusts Over Cremated Ashes causes the reader to ponder the creative ways in which constructive trusts might be used by U.S. courts to fashion a more equitable resolution in disputes over cremated remains. Although an adversarial justice system has a fondness for clearly defining winner over loser, perhaps there are better ways to approach disputes rooted in grief.

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Cite as: Victoria J. Haneman, Constructive Trusts and Cremated Remains, JOTWELL (May 23, 2023) (reviewing Kate Falconer, Trusts over Cremated Ashes, 15 Journal of Equity 283 (2021), availible at SSRN (December 1, 2021)), https://trustest.jotwell.com/constructive-trusts-and-cremated-remains/.