In Pennsylvania, a sibling generally cannot cremate or disinter a loved one without majority approval from the rest of the siblings, the next of kin in this situation. If there are only two siblings, that approval has to be unanimous. This applies to cremation, disinterment, and changes to burial plans that are already in progress.
- Who Has to Approve a Cremation or Disinterment in Pennsylvania?
- What Happens When One Sibling Doesn't Have Everyone's Consent?
- What Is an Indemnification Clause in a Cremation or Disinterment?
- What Happens If the Cemetery Gets Sued?
- Does a Funeral Home or Cemetery Have to Verify Next of Kin?
- What If a Sibling Can't Be Reached?
- How the Orphans' Court Can Help
- Cremation and Disinterment Consent FAQ
- Talk to Kaminsky Law
- Related Reading
Who Has to Approve a Cremation or Disinterment in Pennsylvania?
The law on who has to approve a cremation or disinterment has changed: it’s now majority rule among siblings, not unanimous consent. If there are only two siblings, though, unanimous agreement between them is still required.
This majority-rule standard applies to both cremation and disinterment decisions, and it also covers changing burial plans that are already in progress.
Who Needs to Sign Off?
Answer a couple of questions about your situation to see, in general terms, where you stand under Pennsylvania’s rules for cremation and disinterment consent.
This tool gives general information based on Kaminsky Law’s discussion of Pennsylvania cremation and disinterment consent rules. It is not legal advice and does not create an attorney-client relationship. Every situation is different.
What Happens When One Sibling Doesn’t Have Everyone’s Consent?
A common problem: one sibling knows the other disagrees but goes ahead anyway. At the cemetery or funeral home, they either deny that another sibling exists, or claim to have that sibling’s approval when they don’t.
The funeral home might not take any steps to verify or track down the other next of kin to confirm either story. If they knew or should have known that there was other next of kin out there or didn’t perform any investigation whatsoever, they may be liable..
What Is an Indemnification Clause in a Cremation or Disinterment?
When a cemetery or funeral home takes on this kind of risk, they’ll typically have that person sign what’s called an indemnification. An indemnification document or clause is something that they have the individual making arrangements sign that says the cemetery or funeral home is relying on what the signer told them: if they get sued over it, the signer has agreed to defend them and take responsibility.
Whether the cemetery is fully protected by that document, or still has to participate in a lawsuit, depends on what the indemnification clause actually says. The cemetery isn’t simply out of the picture just because someone signed one.
What Happens If the Cemetery Gets Sued?
If the sibling who wasn’t consulted, or who was misled, finds out, they can pursue the cemetery directly. Their argument: the law required majority consent, and the cemetery had an obligation to get it.
What usually happens next: that sibling sues the cemetery, and the cemetery, using the indemnification agreement, turns around and sues the sibling who made the funeral arrangements and signed it.
It’s a word of caution either way: real buy-in from the rest of the family, and a careful read of whatever you’re signing or promising when directing funeral plans or speaking on the family’s behalf, matters more than it might seem in the moment.
Does a Funeral Home or Cemetery Have to Verify Next of Kin?
Whether a funeral home or cemetery has a duty to investigate or verify next-of-kin claims, beyond getting someone to sign an indemnification, is still an open legal question. It’s likely to be decided case by case.
One factor that comes up: when someone was interred years earlier with a next of kin already on record, the cemetery should, at a minimum, check its own records before allowing a disinterment. Failing to check those records could reasonably be argued to be negligent.
The next question is how much further a cemetery needs to go. Is an unanswered email or text enough to move forward? Should cemeteries be identifying next of kin in the first place? Public record searches exist, and they’re relatively inexpensive, as one way to confirm who someone’s next of kin actually is. One suggested practice: a funeral home could build in an extra $50 or so, out of a roughly $5,000 total fee, to cover a record search confirming next-of-kin status.
What If a Sibling Can’t Be Reached?
If a sibling was unreachable at the time and objects after the fact, that can raise statute of limitations issues. Cremation in particular is treated as final and irreversible, which is part of why majority approval matters so much.
Whether the efforts made to reach that sibling were reasonable, and whether it’s acceptable to proceed once you truly can’t reach them, is likely to be decided case by case.
How the Orphans’ Court Can Help
When a sibling is unreachable, the recommended step is to file with the Orphans’ Court. It’s a relatively simple filing. The process involves disclosing to the court the efforts made to reach the missing sibling, calls, tracking attempts, social media outreach, and asking for an order to proceed based on the deceased and reachable parties’ wishes. The judge makes the decision, and once that order is in hand, the family can move forward.
Documenting those efforts matters: a record of the calls, messages, and other attempts made to reach a sibling who’s hard to locate or not responding is part of what a filing like this depends on. Going to the Orphans’ Court doesn’t have to wait until there’s already a dispute. It can be a proactive step, taken before a cremation or disinterment happens, whenever majority buy-in can’t be confirmed.
The same approach has come up as a possible option when a sibling may not be in the right state of mind to meaningfully weigh in, though that scenario didn’t get the same clear-cut answer the unreachable-sibling situation did.
Cremation and Disinterment Consent FAQ
Can a sibling cremate or disinter someone without my approval in Pennsylvania?
Generally, no. The law requires majority approval among siblings for a cremation or disinterment, and if there are only two siblings, that approval has to be unanimous. This also applies to changing burial plans that are already underway.
What is an indemnification clause?
It’s a document a cemetery or funeral home has someone sign when relying on what that person told them about their authority to act. If the cemetery gets sued over it, the signer has agreed to defend them and take responsibility. Whether that protects the cemetery fully depends on the clause’s exact wording.
Does a funeral home have to verify who the next of kin is?
Whether they’re legally required to is still an open question, likely decided case by case. At a minimum, when someone was interred years earlier with a next of kin on record, the cemetery should check its own records before a disinterment. Public record searches are also available and relatively inexpensive.
What if my sibling can’t be reached?
That can raise statute of limitations issues if they object after the fact. Whether your efforts to reach them were reasonable, and whether you can proceed once you truly can’t reach them, is likely to be decided case by case. The recommended step is to file with the Orphans’ Court.
What is Orphans’ Court?
It’s the court that can approve a cremation or disinterment when you can’t get majority buy-in, for example when a sibling is unreachable. The filing discloses the efforts made to reach that person, and a judge decides whether to grant an order to proceed. It’s described as a relatively simple filing.
What happens if a cemetery gets sued over a disinterment?
If a sibling who wasn’t consulted or was misled pursues the cemetery, arguing it had an obligation to get majority consent, the cemetery will often turn around and sue the sibling who made the arrangements and signed the indemnification agreement.
Talk to Kaminsky Law
Directing funeral plans or making representations on a family’s behalf comes with real responsibility: what you sign, and whether you actually have your family’s buy-in, matters. If a sibling can’t be reached, or you’re not sure you have majority consent, Kaminsky Law can help you document your efforts and, if needed, take it to Orphans’ Court.
Related Reading
- Funeral Home Negligence: Seven Charged With Stealing and Selling Human Remains Online
- How Long Can Human Remains Be Stored Before Being Buried?
- Improperly Stored Human Remains Recovered From a Colorado Funeral Home
This article is general information based on a recorded discussion. It is not legal advice and does not create an attorney client relationship. Every case is different. Prior results do not guarantee a similar outcome. For advice about your situation, contact Kaminsky Law directly.
