Okay, this week’s blog post is not a “How To Avoid Being Eaten By Zombies” or a “Survival Guide for the Zombie Apocalypse,” but it is still informative and helpful (and you may learn something about where possible zombies may end up). Rather, this post explores the legal issues of unclaimed human remains, whether it is the actual bodies or cremation remains. Generally, once a person has passed away, that person’s family or next of kin will be responsible for funeral arrangements and preparations for that person’s body. However, what happens to the remains when no family members or next of kin exist, such as in the cases of guardianships (public and private), appointed agents, and many medical and nursing facilities?
In Virginia, the disposition for unclaimed remains (simply meaning that no family members or next of kin can be located or are willing to accept the body) are governed by statute Va. Code 32.1-309 – Disposition of Dead Human Bodies. Va. Code § 32.1-309.1 first addresses the process for the identification of the decedent and next of kin. In the absence of a next of kin, a person designated to make arrangements for the decedent’s burial or disposition pursuant to§ 54.1-2825, an agent named in an advance directive under § 54.1-2984, or a guardian appointed pursuant to Chapter 20 of Title 64.2 may fulfill the duties of a next of kin. If any of these persons fails to or refuses to fulfill the role of next of kin, the statute authorizes “any person 18 years of age or older who is able to provide positive identification of the decedent and is willing to pay 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.” So, this could simply be a church member, a neighbor, an Army buddy, or just a friend.
The statute clarifies the obligation of any person or institution (most likely a hospital or nursing home) having initial custody of the decedent to attempt to identify the decedent, if the identity is not known, and attempt to notify next of kin of the decedent’s death. If the next of kin fails or refuses to claim the body within 10 days then the body will be disposed of pursuant to the provisions of Va. Code § 32.1-309.2. If the institution having initial custody of the decedent is unable to determine the identity of the decedent or notify next of kin, the institution shall contact the primary law enforcement agency for the locality.
Law enforcement must then make a good faith effort to identify the decedent and notify next of kin. If law enforcement is able to identify next of kin and the next of kin wishes to claim the remains, the next of kin shall be authorized to do so and bear the expenses. If law enforcement is unable to identify the decedent or, despite good faith efforts, next of kin is not identifiable or is not willing to accept the remains, law enforcement shall notify the institution that has custody and the body will be disposed of in accordance with Va. Code § 32.1-390.2. Note that where a next of kin wishes to claim the decedent’s remains but the next of kin is unable to pay the costs of disposition, the costs are to be paid by the locality in which the decedent resided or where the death occurred if the decedent resided out of state. The locality may recover from the decedent’s estate the cost of burial and may seize such assets for that purpose.
As stated earlier, if law enforcement cannot locate any next of kin or if the next of kin refuses the remains, then the process is governed by Va. Code § 32.1-390.2. Under this section, law enforcement shall notify the attorney for the county or city in which the person is located or if there is no county or city attorney, law enforcement must contact the Commonwealth’s Attorney and he or she shall obtain a court order authorizing the institution to transfer custody to a funeral service establishment for final disposition of the decedent. The reasonable expenses of the disposition shall be paid by the locality in which the decedent resided at the time of his death or the county or city where the death occurred, if the decedent was not a resident of Virginia or if his locality cannot be identified.
The statute also codifies a practice that has been employed by a number of hospital and health care systems and funeral service establishments. Basically, these parties have been encouraged to enter into agreements whereby the remains will be stored by the funeral service establishment until location or identification of next of kin can be obtained. Also, these agreements commonly will provide for the disposition of the remains at a reduced cost, because the costs have been paid by hospital and health care systems, not the local government. The statute clarifies that even though a funeral service establishment may have possession of the remains pursuant to an agreement, the obligation to identify the decedent and next of kin continues to be the responsibility of the person or institution that had initial custody.
So, in conclusion, if a deceased person’s body is not claimed by a family member or next of kin, it is first the responsibility of the institution to locate someone willing to take the body. If no such person is found, the local law enforcement agency is responsible for locating someone willing to take the body as well. If that such person is not located (or unwilling to accept the body) by law enforcement, then the city attorney must obtain a court order authorizing the institution to transfer the remains directly to the funeral service establishment for preparation, and likely cremation. So while this post may not help you in constructing your underground bunker to prevent zombie attacks, it should at least be educational and informative if you should find yourself in a situation where you may be responsible for the disposition of a decedent’s body (such as a guardianship or advance medical directive). If nothing else, you can at least rest assured that if a zombie apocalypse does happen, you will now know where all of the unclaimed human remains have ended up!