Post Content

In Burney v. Childrens Hospital, 169 Mass. 57 (1897), the court recognized that next of kin have a right to possession of a decedent’s body.  “a right of possession is recognized, which is vested in the husband or wife or next of kin, and not in the executors.” 
In O’Dea v. Mitchell, 350 Mass. 163 (1966), the SJC held that a child’s right as next of kin vests “only when there is no surviving spouse or no contrary provision by the decedent concerning the disposition of his remains.” 
As a result of these and other cases, it appears that there is a consistent practice in the Massachusetts cremation industry to require the consent of the surviving spouse, or, if there is none, of all adult children to a cremation. 

Obviously, getting the written consent of siblings who may be far apart, geographically or philosophically, can be difficult. The following is from the Funeral Consumers Alliance of Eastern Massachusetts:

“Order for Cremation or Interment

This form, required by the crematory or cemetery, is provided and filled out by the cemetery or crematory staff, and signed by the next of kin requesting cremation.

Order of next of kin–spouse, or, if none, then children (all adult children must sign, and if sending in authorization by fax it must be notarized and the original sent by mail, if from another country consulate should verify the identity)”

That organization recommends that those wishing to be cremated after death obtain a form called “Declaration of Intent Regarding Cremation”  from a crematory, so that they can spell out their wishes and appoint someone to authorize the cremation.

You may also want to discuss your wishes with your estate planning or elder law attorney, so that they can draft the appropriate documents. More information on this and other topics related to death, is available at Mass. Law About Burial, Cremation and Funerals.

Written By:


Recent Posts

New Law Gives Added Protections for Persons with Disabilities posted on Feb 20

Massachusetts Governor Charlie Baker signed a new law on February 13, 2020 which gives more protections to individuals with developmental and intellectual disabilities.  Chapter 19 of the Acts of 2020 establishes a registry for caretakers in Massachusetts who have been found to have caused serious physical   …Continue Reading New Law Gives Added Protections for Persons with Disabilities

Real Estate Recording Fees to be Increased posted on Dec 10

Under Massachusetts General Laws chapter 44B section 8,  real property conveyance documents recorded at the Registry of Deeds are subject to a Community Preservation Act surcharge.  This law was amended by chapter 41 sections 29 and 30 of the Acts of 2019.  Effective December 31,   …Continue Reading Real Estate Recording Fees to be Increased

Portraits in Massachusetts Law: Lucy Stone posted on Nov 13

Portraits in Massachusetts Law: Lucy Stone

Portraits in Massachusetts Law is a regular feature of Massachusetts Law Updates. These pages provide links to biographical information abut people who have been particularly important in legal history in Massachusetts, as our government took shape in the cauldron of the American Revolution and grew and changed throughout   …Continue Reading Portraits in Massachusetts Law: Lucy Stone