When a funeral home releases your loved one to the wrong person

Florida law sets out who has the right to decide, and it expects licensees to follow it.

Call (305) 209-0384 Read the questions first ↓

Read the questions first

• Two of us are in the same group, like siblings. Who decides?
• The funeral home says it just followed the paperwork. Does that end it?
• The ashes were divided without my consent. What can I do?
• How long do I have?

Who has the right to decide in Florida

Florida calls this person the legally authorized person and ranks who it is (§ 497.005(43)(a), Fla. Stat.):

1. The decedent, through written directions given while alive.
2. A person named on a military DD Form 93, if the decedent died in military service.
3. The surviving spouse.
4. A son or daughter 18 or older.
5. A parent.
6. A brother or sister 18 or older.
7. A grandchild 18 or older.
8. A grandparent.
9. The next closest relatives.

If no family member exists or is available, the law lists others who may act, such as a guardian, the personal representative, or a friend willing to take responsibility (§ 497.005(43)(b)). A person arrested for an act of domestic violence against the decedent, or for an act that caused or contributed to the death, has no legally recognized right to decide (§ 497.005(43)).

What the law requires of the licensee

• Permission to take the body. A licensee may not take possession of a body without permission from a legally authorized person (§ 497.152(8)(c)).
• Written authorization for cremation. No cremation until a legally authorized person gives written authorization (§ 497.607(1)).
• Written authorization for burial. A licensee must have written authorization from a legally authorized person before interment, entombment, or disinterment (§ 497.152(8)(e)).
• Surrendering the body. Refusing to promptly surrender a body on the express order of the legally authorized person is grounds for discipline (§ 497.152(8)(b)).
• Dividing the ashes. Dividing cremated remains requires the consent of the legally authorized person who approved the cremation, and disputes go to court (§ 497.607(2)).

The law also lets licensees rely on certain statements. A licensee may rely on a legally authorized person's statement to identify the remains (§ 497.171(5)). That is why the key questions are usually: what was the funeral home told, by whom, and what did it already know?

What the law may provide

Florida lets any person bring a civil action against a licensee that violates Chapter 497, for actual damages and other relief (§ 497.169(1)). Depending on the facts, a family may also have claims for interference with a loved one's remains, breach of contract, negligence, or intentional infliction of emotional distress. 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.

What to keep and request

• Any authorization, release, or pickup form, and who signed it.
• Your calls, texts, and emails telling the funeral home who you are and what you wanted.
• Hospital or nursing-home records listing next of kin.
• Marriage, birth, or other papers showing your relationship.
• A written request for the release paperwork and any ID copied at release.

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

If the remains have not yet been cremated or buried, call right away; there may still be time to raise the dispute. Otherwise, gather your papers and see What to do right now.

Questions families ask

Two of us are in the same group, like siblings. Who decides?

For a cremation, Florida says the funeral establishment shall rely on the authorization of any one person in that group who says they know of no objection from others in the same group or from anyone higher in priority. If you objected and the funeral home knew it, that matters.

The funeral home says it just followed the paperwork. Does that end it?

Not necessarily. Licensees may rely on certain statements, but what the funeral home knew and what it was told are part of the picture. We look at the records and the timeline before reaching any conclusion.

The ashes were divided without my consent. What can I do?

Florida requires the consent of the legally authorized person who approved the cremation before ashes are divided, and sends disputes to court. Keep any portion you have exactly as it is and call.

How long do I have?

Two years from the day it happened is the deadline we use in every case. If the remains are still with the funeral home, do not wait.

Talk to Dennis

When you are ready, call or send a WhatsApp message, in English or Spanish. The office answers 24 hours.

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