May You Rest In Peace ….Elsewhere

Mark Babyatsky died on August 25, 2014. He was 55 years old. He left behind a wife, Elizabeth, and their two minor sons. He was also survived by a daughter, Amanda, who was the offspring from a prior marriage.

Shortly after he was buried, Elizabeth sought to disinter Mark’s remains and transfer them to another cemetery. Elizabeth felt that the two plots which she and Mark owned at the cemetery were poorly situated and too small. With the assistance of their rabbi, she purchased 8 lots at another cemetery.

In order to transfer remains in New Jersey, the law requires the consent of the surviving spouse, any adult children, and the owner of the internment space. Initially everyone agreed. However, after a personal dispute with Elizabeth, Amanda revoked her permission.

The Superior Court in Bergen County noted that disinterment is generally disfavored and clear evidence must be shown to support disinterment when there is a family dispute. The Court stated that the statutory rule could be set aside if equitable principles allowed same. In this case, the Court found that it was appropriate to do so because the reasons to move the remains were sound, other members of the family consented and supported the application, and the dissenting daughter did not have a particularly close relationship with her father.

In all, the Court decided the case on what it felt would be the decedent’s clear preference. In order to make sure those wishes are clear, we need to do so with our family members when we plan our estates.



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