Legal Question in Wills and Trusts in California
My friend died unexpectedly leaving behind her mother and daughter 17. Unfortunately it appears that she may have been still married to her "exhusband" who had filed for divorce in Dec. 2008 (state of California) From what I can gather from the case summary although he requested a default judgement on several occasions the case seems to have been dismissed in Sept. 2009, however there was another request for a default judgement in Oct. 2009 showing in the summary. There is no property or money involved. The mother just wants to lay her daughter to rest but the "husband" is refusing to sign off the right for the mother to make decisions regarding her daughters body and disposal thereof. Does her mother have and legal recourse besides probate at this point?
2 Answers from Attorneys
Ask the ex why he will not agree and does he want to pay the costs of "storage" of the body until a decilsion is made. Also, remember, although I do not recommend it, when you commit a "wrong" [tort] the person against whom the tort is done still has to prove the they suffered some damages because of the act.
Bodies are not handled in probate. They are handled by a set of laws set forth in California's Health and Safety Code.
Health and Safety Code section 7100 �establishes only an orderly process by which to ensure that proper disposition is made of human remains.� (Christensen v. Superior Court (1991) 54 Cal.3d 868, 896-897.)
Unfortunately, that section gives priority to a competent surviving spouse. You can read the entire statute here:
http://codes.lp.findlaw.com/cacode/HSC/1/d7/1/3/s7100
If no divorce decree was ever entered by the court, he qualifies as a surviving spouse.
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