Wrong Release, Wrongful Cremation, and Lost Remains

These are among the most painful things a family can learn: that the body of someone you love was given to the wrong people, was cremated when it should not have been, or cannot be found. We are sorry. This page explains how Florida law approaches these events.

No standard jury instruction exists

Florida has no standard jury instruction for these claims. They rest on common law and on Chapter 497 of the Florida Statutes. Where a case is tried, the court crafts a special instruction around the facts.

The three situations

Wrong release. The provider releases a body to the wrong person or family, or to a facility that was not authorized. Often the problem is a mix-up in identification or paperwork.

Wrongful cremation. The provider cremates a body without proper written authority, without waiting for a required authorization, over the objection of someone entitled to decide, or when the wrong person has been cremated.

Lost remains. The provider cannot account for a body or for cremated remains, or cannot show where they were kept or sent.

Chapter 497 and the rules adopted under it address authorization, identification, and recordkeeping for these steps.

Why these cases are different

Cremation cannot be undone. A wrong release may mean a family held a service for the wrong person, or a burial cannot be corrected. Florida law gives close family a protected interest in the body of a loved one. The legal claims rest on that interest.

Who can bring it

Usually the person with the legal right to control the remains and the relatives closest to the person who died, in the order the law sets (section 497.005(43), Florida Statutes, which defines the "legally authorized person"). Sometimes two families are affected by the same mix-up, and each may have its own claim.

What must be proven

• The provider had custody of the body or remains.
• It had a duty to identify, authorize, handle, and release them correctly.
• It failed in that duty.
• The failure caused harm to the family.
• The legal standard for emotional harm is met. In dead-body cases, a claim for mental anguish based on negligent handling requires proof of either a physical injury or willful or wanton misconduct. Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So. 2d 673 (Fla. 1995); see also Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950). Florida courts continue to apply and refine these rules, so a lawyer should check the latest decisions for your situation. This is explained on our page about mishandling of a dead body.

The provider's own records often decide the case: intake forms, identification tags, cooler logs, release forms, cremation authorizations, and transport records.

How and when it is pleaded

These events are usually pleaded as a combination of negligence, breach of contract, violation of Chapter 497 (section 497.169, Florida Statutes), and, where the evidence supports it, intentional or reckless mishandling. A claim for punitive damages needs the court's permission after a showing of evidence (section 768.72, Florida Statutes). The time to file is limited (section 95.11, Florida Statutes). Families sometimes learn of the error long after the event. Do not assume the deadline starts on the day you found out. A lawyer should review the dates right away.

Damages

A jury may be asked to consider the family's mental pain and suffering, money paid for services that were not provided, the cost of correcting the situation, and, if the court allows it, punitive damages. We cannot say what any case is worth, and we do not promise a result.

Common defenses

• The family or another authorized person signed an authorization.
• The error was an honest mistake without malice, and no physical injury followed.
• Another business, such as a hospital, medical examiner, or transport service, shares the fault. In negligence claims, Florida law allows the jury to divide fault (section 768.81, Florida Statutes); that statute does not apply to intentional wrongs.
• The contract limited the provider's responsibility.
• The deadline to sue has passed.
• The provider says the remains were handled correctly and the family cannot prove otherwise.

These defenses depend on records. That is why preserving evidence matters so much.

What families should do now

1. If you suspect a mix-up, ask the provider in writing what happened, who authorized it, and where the remains are now.
2. Ask in writing that the provider preserve all records, logs, video, and tags.
3. Keep the urn, the container, any labels, and any paperwork you received. Photograph them.
4. Write down what you were told and by whom.
5. Do not sign a release or accept an offer before a lawyer has reviewed it.
6. Call us. Evidence can disappear and deadlines run.

Call us, day or night

(305) 209-0384. 24 hours a day, 7 days a week. Se habla español. Free consultation.

This page is general information, not legal advice, and it does not create an attorney-client relationship. Past outcomes do not guarantee future results.