When the husband dies

Legal approaches to the burial rights of a surviving wife

| DR REMIGIUS N NWABUEZE | Most mortuary cultures sentimentalise the dead body of a departed relative. Legal systems accommodate these sentiments through the development of appropriate legal protections. In 1905, a U.S. court captured the enormity of the legal challenge posed by dead bodies: “Death is unique. It is unlike aught else in its certainty and its incidents. A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed, and thought, and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away”.

And the law – that rule of action which touches all humans – must touch also this thing of death. It is not surprising that the law relating to this mystery of what death leaves behind cannot be precisely brought within the letter of all rules regarding corn, lumber, and pig-iron.”

The problem of legal regulation is probably felt more in the selection of the person entitled to determine the time, place and manner of burial of a deceased relative. More especially, do legal systems recognise the right of a surviving wife to control the disposition of her husband’s remains? Much depends on the particular legal system.

Most western legal systems recognise the right of a surviving wife to control the disposition of the remains of her deceased husband. In the USA, the surviving wife is the appropriate person to determine the time, manner and place of burial of her deceased husband. Although she is expected to take the wishes of other members of the family into consideration, her own sepulchral wishes are controlling and paramount in the event of a conflict.

But the American widow is not given priority at all cost and in all circumstances. For instance, a widow’s priority is subject to the burial wishes of her deceased husband. If the decedent’s sepulchral wishes are ascertainable and clear, American courts will enforce them. Whether these mortuary directions were actually given and what their contents are would always remain questions of fact and the answer would depend on the surrounding circumstances of each case.

As such, the American sepulchral framework is highly individualised but it has its advantages. It ensures that in the event of a family dispute (which is common these days) over the right to determine the time, manner and place of burial of the deceased (her husband), her decisional authority to do so is not in doubt. This certainty avoids unnecessary litigation between family members which would exacerbate the grief arising from the death of the husband. But this approach carries the disadvantage of insensitivity to the legitimate wishes of other family members who did not agree with the widow’s general plan for burial.

The position is not much different in the UK, Australia, and Canada. Sepulchral prioritisation in these jurisdictions is still marked by their individualisation. Paramountcy, however, is accorded to the wishes of the executor or the deceased’s legal representative rather than the surviving wife, except she is also the deceased’s executrix.

One thing, however, is clear. In the UK, USA, Canada, and Australia, the decisional authority over the burial of a family member is the prerogative of a single person. The framework of regulation is rights-based. In those jurisdictions, the individualisation of sepulchral rights is beyond cavil and it contrasts sharply with the position in many African countries.