Funeral Home Litigation
When a loved one's body or tissue is used without proper consent
Donation is a generous choice, and Florida law protects it. This page is about something different: when the law's consent rules were not followed.
Families sometimes learn, often months later and sometimes through the news, that a loved one's body was used or sent somewhere beyond what they agreed to, that tissue or organs were taken when no one with authority consented, or that the remains returned to them seem incomplete.
Call (305) 209-0384 Read the questions first ↓
Read the questions first
What Florida law requires
- The donor's own choice comes first. A person may make an anatomical gift during life, for example on a donor card, the donor registry, a driver license, or a will (§ 765.514(1), Fla. Stat.). A gift made by the donor and not revoked cannot be overridden by family after death (§ 765.512(1)(b)).
- If the person did not decide, family decides in order. When there is no gift and no health care surrogate, a gift may be made by the spouse, then an adult child, a parent, an adult sibling, an adult grandchild, a grandparent, and others the law lists, and a gift may not be accepted over a known objection from someone higher on the list (§ 765.512(3)–(4)). That gift must be made by a signed document or a witnessed or recorded message (§ 765.514(3)).
- No removal before consent is confirmed. Organs may not be surgically removed for donation until the decedent's consent is verified in the donor registry or a proper document of gift is found, or, if neither exists, an authorized person, such as a family member in priority order, has been located, notified of the death, and has given permission (§ 765.517(3)).
- Specific written consent for dissection. A nontransplant anatomical donation organization must obtain specific written consent from an authorized person before dissecting or separating any part of the remains, and the consent must state expressly that the remains may undergo long-term preservation or extensive preparation, including removal of body parts (§ 406.61(2)(b)).
- No payment for remains. No one may offer money or other valuable consideration in exchange for human remains. Paying the reasonable costs of removal, storage, transportation, and later disposition is not prohibited (§ 406.61(3)).
- Medical examiners. A medical examiner may not keep or furnish body parts for research or other purposes unrelated to identifying the deceased, determining the cause or manner of death, or the presence of disease, unless certain other Florida laws allow it, without notifying and getting the approval of the next of kin (§ 406.11(2)(b)).
Florida also protects people who act in good faith and without negligence under the anatomical gift law (§ 765.517(5)). So the question in every case is whether the rules were actually followed.
What the law may provide
Depending on the facts, a family may have claims for interference with a loved one's remains, fraud, breach of contract, or intentional infliction of emotional distress. Where a licensed funeral home or crematory violated Chapter 497, Florida lets any person bring a civil action for actual damages and other relief (§ 497.169(1)). Your family's emotional harm matters. The Florida Supreme Court is now considering when Florida law allows recovery for emotional harm without a physical injury, and we will explain how the law stands for your situation. Claims against a government office, such as a medical examiner, have special notice rules.
What to keep and request
- Any donation or consent form, and the program's brochures, emails, or web pages.
- The death certificate and any autopsy or examination report.
- What came back to you: the urn and its paperwork, kept sealed.
- Any news report, letter, or notice from law enforcement about the program.
- A written request to the program for your loved one's consent records and where the remains went.
The deadline
Two years. Florida law gives a negligence claim two years (§ 95.11(5)(a)). Some claims may carry a longer period, but no family should bet on that. We treat two years from the day it happened as the deadline in every case, and you should too. If you only just found out, call anyway: when the clock started is a question we answer case by case.
What to do first
Gather the paperwork, keep any remains sealed, and talk with a lawyer before signing anything the program sends. See What to do right now.
Questions families ask
My mother registered as a donor. Can the family undo that?
No. Under Florida law, a gift the donor made and did not revoke cannot be changed or blocked by family after death. Our concern is different: whether the people who received the gift followed the law and the terms of the gift.
The program offered a free cremation. Is that allowed?
Florida prohibits paying for human remains, but allows payment of the reasonable costs of removal, storage, transportation, and disposition. So a no-cost cremation is not unlawful by itself. What matters is what you were told, what you signed, and what was actually done.
How would we even find out?
Often through a news report, a letter from investigators, or remains that do not seem right. If you have only a suspicion, keep your papers and call. We can help you ask the right questions in writing.
The medical examiner kept organs. Did they need our permission?
It depends on why. A medical examiner may keep what is needed to identify the person or determine the cause or manner of death or the presence of disease. For other purposes, such as research, the law requires notice to and approval by the next of kin unless certain other Florida laws allow it. Claims involving a government office have special notice rules, so call early.
Talk to Dennis
When you are ready, call or send a WhatsApp message, in English or Spanish. The office answers 24 hours.
You can read about some of our past cases on our Results page.
Former Miami-Dade prosecutor · Since 2012 · Super Lawyers Rising Stars · Avvo Rating 10.0