Post-Cremation Ashes: What’s The Legal Position?

SAIF thanks Dr Heather Conway, School of Law, Queen’s University Belfast, and author of The Law and the Dead (Routledge, 2016), for this blog. SAIF Members may click here to read the unabridged version in the Members’ area.

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 such as Families Fighting Over Ashes.

This is an increasingly common problem for funeral
directors. In addition to 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 e.g. adult children from different relationships, or children
and a new spouse or partner.

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.

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. The Cremation (England and Wales) Regulations
2008 stated that the crematorium had to return the ashes to the applicant
(person who applied for cremation).

This was amended in 2017, taking effect in April 2018, to
state that the cremation authority must dispose of the ashes in
accordance with the applicant’s instructions for the ashes.

Where instructions were not given by the applicant, or
where the ashes were not collected as instructed by the applicant, the rule change
is 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 2018 changes also introduce a new regulation which
allows the cremation authority “in exceptional circumstances” to release the ashes to someone other than the applicant or the applicant’s
nominee.

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.

SAIF Members may login to the Members’ area and read the full version here.