Who has Rights to the Ashes After Cremation?

Will next to urn

Losing a loved one can be a devastating blow for families and it is not entirely uncommon for disputes to arise about the possession of the ashes. Ashes are the remains of someone who has been cremated and are incredibly meaningful as they are the last tangible remains of that person. These ashes are normally stored inside an Urn but can also be handled in various other ways. While it is always good to amicably agree between parties as to how the ashes will be handled and who will own them, it won't always be so easy. In this article we will discuss who holds the legal rights over someone's ashes after a cremation. 

First things first, check the will

If the deceased person had a will, then the executor of the will shall control the burial or cremation arrangements. This is important because the executor will ultimately have full control over what happens to the ashes as well as to who will own them. While human bodies are not considered to be property, a body that has had some form of work done to it can be. A crematorium changing the body into ashes satisfies this condition, so ashes in an unscattered form are considered property that can be shared and have ownership. When determining the appropriate manner of disposal for ashes, the Australian courts have held that an executor should consider the wishes of the deceased, the wishes of the deceased’s relatives, community and cultural values as well as any other practical considerations that may arise. The executor will ultimately have the final say in what happens with the ashes, even reserving the right to distribute the ashes to themselves if they so choose. 

What if they didn't leave a will?

If the deceased did not leave a will behind then it is down to the person who applied for the permit for the cremation. When there is no executor, this is the person who will receive the legal rights to the ashes. According to the cremation regulations of 1954, there is a ranking in which people may be entitled to the possession of the ashes. The first being the spouse or de facto partner living with the deceased immediately prior to the death. The second being the spouse. The third being the son or daughter if they are over 18 years of age. The fourth being the parent of the deceased and finally the brother or sister of the deceased if they are over 18. To obtain the legal right over the ashes it is important to be the one to apply for the cremation permit. 

Losing someone is difficult but handling their ashes shouldn’t have to be. Knowing the legality behind who owns the ashes is helpful when settling family disputes. The information in this article is not legal advice and is only intended to provide general information about the law. As Australia's largest urn store, Eternal Urns has an extensive range of the best quality urns available, so check out our range today.