It’s likely that few of us think much about interment and disinterment of the deceased except when death visits our families or friends. But on this date in 2009, the Supreme Court had to address those very issues, which are governed by the Cemetery Act of 2003. The case was Marino v. Marino, 200 N.J. 315 (2009). This appeal came before the Court by virtue of a dissent in the Appellate Division. To get to the end of the story first, by a 6-1 vote, the Court agreed with the Appellate Division dissent, written by Judge Stern. Justice Hoens wrote the majority opinion for the Court. Justice Rivera-Soto dissented.
This case arose out of a dispute between the decedent’s wife and his children as to where he should be buried. The decedent had expressed the wish to be buried in a plot owned by his mother, where his father was already buried and where his mother, whenever she died, would be buried. He also expressed a desire not to be disinterred. But his will was silent as to all that. His wife, on the other hand, wanted him to be buried in a plot that the couple had acquired that was near where her family members were buried. But the couple’s relationship had deteriorated over time, and the decedent’s adult children were firmly and unanimously opposed to that. They insisted that the burial occur where the decedent had wanted to be buried. The wife accepted that, though she claimed she did so under duress.
Eight months later, the wife sued, seeking to disinter the decedent and rebury him in the place that she had preferred. The Chancery Division denied her application. She appealed, and the Appellate Division reversed in a 2-1 vote. On further review, the Supreme Court reversed and reinstated the Chancery Division’s ruling.
The Cemetery Act contained separate statutes governing interment and disinterment. The interment statute, N.J.S.A. 45:27-22, stated that if the decedent left no will regarding burial, “the right to control the funeral and disposition of the human remains” was in the control of the surviving spouse in the first instance. But the disinterment provision, N.J.S.A. 45:27-23, was very different. That provision stated that, “Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless: (1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing.”
The Appellate Division applied the principle of reading statutes in pari materia, essentially “adding concepts” (Justice Hoens’s words) from the interment statute into the disinterment provision, and held for the wife. The Supreme Court disagreed. The idea of in pari materia applies only “when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object.” Here, the Legislature made clear that the two sections at issue had entirely different purposes and rationales, as Justice Hoens went on to explain at some length.
There were also “several clear differences” in statutory language. “First, there is a strong preference that remains, once interred, ‘shall not be removed.’ Ibid. Second, the authority to disinter is not vested in the surviving spouse alone, but rather is given to the ‘surviving spouse, adult children and the owner of the interment space,’ who must give their authorization both jointly and in writing. Ibid. Third, the power of the court to act in a manner contrary to the statute is expressly preserved. Ibid.”
Justice Hoens concluded that “[i]n large part, the majority of the appellate panel viewed the matter as one in which plaintiff was wrongfully deprived of her statutory right to have decided the place of interment in the first instance. Seen in that light, the panel concluded that she was entitled to disinterment as a remedy for that injustice.” But that was not the proper approach. “The record is undisputed that the preference about burial attributed to decedent was not his alone; rather it was also the preference of all of the surviving adult children, who spoke with a unified voice. Seen in that context, plaintiff’s contrary preference was insufficient as a matter of law.”
