Sherman v. Sherman, 330 N.J. Super. 638 (Ch.Div. 1999), is a case regarding who controls the disposition of a corpse, with the court applying state legislation instead of common law principles on disposition.
Background
The children of the decedent brought this suit for a temporary restraining order to stop the burial plans by the decedent’s wife. The decedent and wife married outside of the states but have been estranged for four years. The children claim that the estrangement and a purported custody agreement between the decedent and the wife give them priority over the wife in deciding how to bury the decedent. The children brought this claim for a temporary restraining order the night before burial was to occur.
Holding and Significance
The court denied the request for a temporary restraining order, citing the failure of the plaintiffs to show a threat of irreparable injury, lack of notice and other procedures, and the law not supporting their claim.
The key part of the judgment involved the analysis of the children’s claims of priority over the wife in determining the disposition of the decedent. The court found that common law tends to support spouses having priority over children, even if the spouses were estranged. Regardless, the court pointed out that the State of New Jersey had a statute delineating the priority of persons in making these decisions. The statute puts in order the decedent’s, spouse’s, and then children’s wishes regarding disposition. The court rejected the argument that estrangement could make a spouse lose their rights under the statute.
[Last updated in September of 2023 by the Wex Definitions Team]