The couple had been married for a brief time, and they then separated after the wife suffered a miscarriage. The child was stillborn at twenty-six weeks, and after the divorce, they raised issues of the distribution of the ashes.
The judge had to determine whether the ashes were “marital property” as the New York law defines property that is acquired during the course of the marriage. The judge felt that the ashes were clearly property, but not the separate property of only one spouse, since both husband and wife had contributed to the production of the fetus, which was produced during their marriage.
Normally, when a child is born, the issue of property ownership disappears, as the child is considered a person and not property. On the other hand, once the baby’s status was other than live, and the remains were converted to ashes, the characterization of the remains were determined to be property.
The judge determined that the remains were to be construed as belonging solely to the mother under the statutory and common law of reproductive rights, and that the father was not entitled to have the ashes as marital property. The judge said “that while it would be good to” confer a property interest in property remains to a husband, unless it was clearly to be the case, the ashes of the wife’s stillborn birth shall be presumed to be her separate property”.
It is unfortunate that this type of case had to find its way to the court and the family could not agree, and it also remains to be seen as to whether there will be a follow-up appeal or further cases to be determined on this subject. It is doubtful that this type of situation could be anticipated and that the family would ever decide in advance as to how remains should be distributed, but certainly, this type of situation is unfortunately being determined by a court and not the family itself.
Hyman G. Darling, Esq.
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