Linda F. Seals v. H & F, Inc. - Dissenting

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 7, 2009 Session

LINDA F. SEALS v. H & F, INC. ET AL.

Rule 23 Certified Question of Law
United States District Court for the Middle District of Tennessee
No. 3:08-cv-01038 William J. Haynes, Jr., Judge

No. M2009-00330-SC-R23-CQ - Filed January 15, 2010

W ILLIAM C. K OCH, J R., J., concurring in part and dissenting in part.

This Court has accepted three questions certified by the United States District Court
for the Middle District of Tennessee in accordance with Tenn. S. Ct. R. 23 that require us to
determine how existing Tennessee law addresses certain questions involving the cremation
of human remains. I regret that I am able to concur with the Court’s answers to only the
second and third questions. I cannot concur with the Court’s answer to the first question
because it overlooks that, by virtue of the definitive actions of the Tennessee General
Assembly in 2000, the common-law right of sepulchre, recognized by this Court over eighty
years ago, provides the basis for answering the question.

I.

The first question certified by the United States District Court is as follows:

Who has legal control over the disposition of the remains of a
decedent when there is no surviving spouse? Specifically, with
respect to the facts of this case, with whom is such control
vested among a sole surviving parent of the decedent, a fiancé 1
of the decedent, and a fourteen-year-old minor child of the
decedent?

I would answer this question by stating that control of the disposition of the remains of a
decedent who has not made arrangements for the disposition of his or her own remains prior
to death is currently governed by the common-law right of sepulchre as it has been

1
Because the decedent in this case is a male, the term “fiancée” rather than “fiancé” is the appropriate
descriptor.
recognized by Tennessee courts. In the absence of a surviving spouse, the authority to make
decisions regarding the disposition of a decedent’s remains rests with the decedent’s “next
of kin.” The term “next of kin” refers to those persons who, according to the rules of
consanguinity, are next or nearest in blood to the decedent. Based on these rules, a
decedent’s fourteen-year-old child may authorize the disposition of a parent’s remains unless
a court determines that the child lacks the capacity to make his or her own independent and
considered decision. If the child is capable of making an independent and considered
decision, the child’s decision is entitled to preference over that of the decedent’s surviving
parents.

A.

Death is a natural and inevitable part of life’s journey. When death comes, our
society, acting with compassion and respect, has long preferred to leave it to the decedent’s
family to make appropriate arrangements for the disposition of the decedent’s remains. This
respect is reflected in the common-law “right of sepulchre,” which has been described as the
“sacred and inherent right” of a decedent’s family to the custody of a decedent’s remains for
disposition and undisturbed repose. In re Widening of Beekman Street, 4 Bradf. Sur. R. 503,
529 (Sur. Ct. of N.Y. County 1856).

Tennessee’s courts have recognized this common-law right. Over one century ago,
this Court noted that “[c]ivilized countries have always recognized and protected the sacred
right to Christian burial2 and to an undisturbed repose of the human body when buried.”
Thompson v. State, 105 Tenn. 177, 180, 58 S.W. 213, 213 (1900). In 1927, citing Larson v.
Chase, 50 N.W. 238, 239 (Minn. 1891) with approval,3 we stated that “the right to the
possession of a dead body for the purposes of decent burial is vested in the surviving husband
or wife or next of kin and that it is a right which the law will recognize and protect.” Hill v.
Travelers Ins. Co., 154 Tenn. 295, 299, 294 S.W. 1097, 1098 (1927). As late as 1989, the
Court of Appeals held that “[a]bsent an expressed desire of the deceased, the surviving
spouse and, if no surviving spouse, the next of kin, has the right of custody and burial of the
remains of the deceased.” Estes v. Woodlawn Mem’l Park, Inc., 780 S.W.2d 759, 762 (Tenn.
Ct. App. 1989). The operation of the common-law right of sepulchre does not depend on the
nature of the disposition of the decedent’s remains. Thus, the right exists notwithstanding
whether the decedent is buried or cremated.

2
By citing Justice Caldwell’s opinion in Thompson v. State, I do not endorse the notion that only
“Christian” burials are sacred.
3
The precise holding of the Minnesota Supreme Court was that “the right to the possession of a dead
body for the purposes of decent burial belongs to those most intimately and closely connected with the
deceased by domestic ties, and that this is a right which the law will recognize and protect.” Larson v.
Chase, 50 N.W. at 239.

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 In 1982, the Tennessee General Assembly enacted a statute confirming the
enforceability of written designations of cremation.4 In the absence of the decedent’s
direction regarding the disposition of his or her remains, the statute identified and prioritized
to whom the cremated remains should be delivered. Tenn. Code Ann. § 62-5-501(b).
However, the statute did not address who, other than the decedent during his or her lifetime,
could authorize the cremation of a decedent’s remains. Thus, it did not affect the common-
law right of sepulchre. The statute was repealed in 1999.5

In 1999, the Tennessee General Assembly enacted a detailed statutory scheme
governing the disposition of a decedent’s remains by cremation.6 One of these statutes –
Tenn. Code Ann. § 62-5-503 – contained a hierarchical priority of the persons who were
entitled to act as the “authorizing agent” 7 for the cremation of a dead human body. While
Tenn. Code Ann. § 62-5-503(a) identified and ranked nine classes of persons who were
statutorily permitted to act as a decedent’s authorizing agent, only three of these classes are
relevant to the issues in this case. These classes, in order of priority, were:

(1) The spouse of the decedent, at the time of the
decedent’s death;

(2) The decedent’s surviving adult children. If the
decedent is survived by more than one (1) adult child, any adult
child of the decedent who states on the cremation authorization
form that all the decedent’s other adult children have been
notified of the decedent’s death and of the plans to cremate the

4
Act of Mar. 25, 1982, ch. 703, 1982 Tenn. Pub. Acts 273, codified at Tenn. Code Ann. § 62-5-501
(Supp. 1983).
5
Act of May 13, 1999, ch. 215, § 12, 1999 Tenn. Pub. Acts 469, 486.
6
Act of May 13, 1999, ch. 215, 1999 Tenn. Pub. Acts 469, codified at Tenn. Code Ann. §§ 62-5-501
through -511 (Supp. 1999). It is perhaps not coincidental that at the time the General Assembly enacted these
statutes, the Cremation Association of America was circulating a draft Model Cremation Law containing
many provisions similar to those found in Tennessee’s statutes. Cremation Ass’n of N. Am. Model
Cremation Law and Explanation, http://www.cremationassociation.org/docs/model-cremation-law.pdf. This
industry created model law “served as a basis for many state legislatures that wanted to enact legislation
allowing constituents to designate cremation as the method of disposition.” Tracie M. Kester, Note, Uniform
Acts – Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, 29 W.
New Eng. L. Rev. 571, 582 (2007).
7
Tenn. Code Ann. § 62-5-501(3) defined an “authorizing agent” as “the person or persons who are
entitled to order the cremation of a decedent or body parts and to order the final disposition of the cremated
remains of a decedent or body parts.”

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 decedent and that none of them have expressed an objection to
the cremation, may serve as the authorizing agent;

(3) The decedent’s surviving parent or, if the decedent
was under eighteen (18) years of age at death, a surviving parent
or the guardian or custodian of the decedent. If the decedent is
survived by both parents, either of them may serve as the
authorizing agent by stating on the authorization form that the
other parent has been notified of the decedent’s death and of the
plans to cremate the decedent and that the other parent
expressed no objection to the cremation.

When these new statutes became effective on July 1, 1999, they operated in
conjunction with and displaced the common-law right of sepulchre only to the extent that
they were inconsistent with the common law. The statutes had no effect on the common-law
right of sepulchre in the context of burial. However, they governed the disposition of a
decedent’s remains by cremation. Thus, with regard to the priority of persons empowered
to authorize cremation, Tenn. Code Ann. § 62-5-503(a)(1), like the common law, vested in
the decedent’s surviving spouse the prerogative to authorize cremation. In the absence of a
surviving spouse, Tenn. Code Ann. § 62-5-503(a) provided additional specific priorities that
differed from the common law.

The 1999 statutory priorities governing the persons permitted to authorize the
cremation of human bodies lasted less than one year. In response to intense objections from
the public,8 the Tennessee General Assembly repealed them effective on May 22, 2000,9 and
left no other statute prioritizing the ability to authorize the disposition of a decedent’s
remains in their place.10

8
Representative Howard Kerr, the House sponsor of the 2000 legislation, reminded his colleagues
during the final consideration of the bill on March 20, 2000:

Last year . . . we passed the law on cremation that did two things. It mandated a twenty-four
hour delay after death of the individual before the body could be cremated, and second, it
stipulated a sequence of survivors that could make decisions regarding the disposition of the
body. You will recall that the public reactions against these provisions were very negative
and very strong, and they asked us to do something about it.
9
Act of May 11, 2000, ch. 779, 2000 Tenn. Pub. Acts 2231.
10
The Uniform Anatomical Gift Act, which was first enacted in 1969, Act of Mar. 25, 1969, ch. 35,
1969 Tenn. Pub. Acts 62, and the revised Uniform Anatomical Gift Act, which was enacted in 2007, Act of
May 29, 2007, ch. 428, 2007 Tenn. Pub. Acts 605, codified at Tenn. Code Ann. §§ 68-30-101 through -120
(Supp. 2009), are limited in their scope and, by their own terms, do not apply to the disposition of a
(continued...)

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 B.

The first issue posed by the United States District Court does not require this Court
to construe any of the statutes governing the cremation of human bodies because these
statutes no longer contain a hierarchical prioritization of the classes of persons who may
authorize a cremation. Our only task with regard to the first issue is to ascertain the legal
consequences of the General Assembly’s decision in 2000 to repeal the priorities in Tenn.
Code Ann. § 62-5-503(a). We are not required or empowered to parse the Tennessee Code
Annotated for other statutes that might contain a workable framework for resolving this
dispute.

Apart from the judiciary’s prerogative to say what the Constitution of Tennessee
means, decisions regarding the public policy of this state rest with the General Assembly.
Schneider v. City of Jackson, 226 S.W.3d 332, 344 (Tenn. 2007); Estrin v. Moss, 221 Tenn.
657, 669, 430 S.W.2d 345, 350 (1968). This Court is not the forum where general public
policy issues should be resolved, Lavin v. Jordan, 16 S.W.3d 362, 369 (Tenn. 2000), and thus
this Court is “not free to establish what its members believe to be the best policy for the
State.” Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987). When we undertake to do so, we
are usurping the constitutional prerogatives of the General Assembly. Cavender v. Hewitt,
145 Tenn. 471, 476, 239 S.W.2d 767, 768 (1921).

The common law provides one of the most reliable backgrounds upon which an
analysis of the objects and purposes of legislative action may be determined. See 2B Norman
J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 50:1, at 163 (7th ed.
2008) (hereinafter “Statutes and Statutory Construction”). Accordingly, all statutes and
legislative actions may be construed in light of the common law and the scheme of
jurisprudence existing at the time of the legislative action. Statutes and Statutory
Construction § 50:1, at 160.

The General Assembly is presumed to know the state of the existing law when it
enacts legislation. Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chattanooga
Med. Investors, LP., 221 S.W.3d 506, 511-12 (Tenn. 2007); State v. Hawk, 170 S.W.3d 547,
552 (Tenn. 2005). This presumption includes the General Assembly’s knowledge of the state
of the common law when it enacts legislation. Statutes and Statutory Construction § 50:1,
at 164. Thus, legislative acts are construed with reference to the common law and should not
be construed to displace the common law any further than they expressly declare or
necessarily imply. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 679 (Tenn. 2002);
Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 546, 354 S.W.2d 464, 470 (1962);

10
(...continued)
decedent’s remains. Tenn. Code Ann. § 68-30-103 states that these statutes apply only “to an anatomical gift
or amendment to, revocation of, or refusal to make an anatomical gift.”

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Nichols v. Atnip, 844 S.W.2d 655, 659 (Tenn. Ct. App. 1992). To the extent that a legislative
act does not supersede the common law, the common law continues in force. Lively v. Am.
Zinc Co. of Tenn., 137 Tenn. 261, 273, 191 S.W. 975, 978 (1917); State v. Cooper, 120 Tenn.
549, 553, 113 S.W. 1048, 1049 (1908).

C.

Prior to 1999, the common-law right of sepulchre provided the principles that guided
the courts when they were called upon to resolve disputes regarding the disposition of a
decedent’s remains. Rather than being rigid, these principles were conceived in equity and
were sufficiently flexible to enable courts, when called upon, to consider each case based on
its unique facts and to fashion an equitable remedy. Estes v. Woodlawn Mem’l Park, Inc.,
780 S.W.2d at 762.

In 1999, the General Assembly replaced these flexible common-law rules, at least
insofar as they applied to cremation, with a more rigid set of rules and priorities. These
statutes displaced the common law to the extent that they were inconsistent with the common
law. However, less than one year later, the General Assembly repealed many of the statutes
that it had enacted in 1999, including the statutes that dictated who had the authority to
authorize the cremation of a decedent’s remains. The repeal of the 1999 statutes had two
legal effects. The first effect was to remove these statutes from Tennessee law and to treat
them as if they had never existed, except with regard to transactions and other matters that
arose and were completed while the statutes were in effect. State v. Morris, 136 Tenn. 157,
162, 189 S.W. 67, 68 (1916). The second legal effect of the repeal of the 1999 statutes was
to revive the common law as it was before the enactment of the repealed 1999 statutes.
Statutes and Statutory Construction § 50:1, at 165-67.

Unlike other states whose legislatures have enacted general statutory provisions
governing the persons who may authorize the disposition of a decedent’s remains,11
Tennessee has never enacted broad statutory priorities regarding who may authorize the
disposition of a decedent’s remains. Thus, from and after May 22, 2000 – the effective date
of the 2000 legislation repealing the 1999 statutes – the principles for determining the
persons who could authorize the cremation of a decedent’s remains are derived from the
common-law right of sepulchre.

11
See, e.g., Ala. Code § 34-13-11 (2007); Colo. Rev. Stat. § 15-19-106 (2008); Ind. Code § 23–14-31-
26 (Supp. 2009); Me. Rev. Stat. Ann. tit. 22, § 2843-A (Supp. 2009); Minn. Stat. § 149A.80 (Supp. 2009);
S.C. Code Ann. § 32-8-320 (2007).

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 D.

The answer to the first issue posed by the United States District Court is found in
Tennessee’s version of the common-law right of sepulchre. Under the common law, a
decedent’s surviving spouse has primary authority to decide on the disposition of the
decedent’s remains. In the absence of a surviving spouse, the decision falls to the decedent’s
“next of kin.”

The term “next of kin” has a well-defined and settled meaning. It means the next or
nearest in blood following the line of consanguinity,12 and those persons entitled to the estate
of an intestate decedent under the laws distribution. Fariss v. Bry-Block Co., 208 Tenn. 482,
489, 346 S.W.2d 705, 708 (Tenn. 1961); Lakins v. Isley, 200 Tenn. 353, 357, 292 S.W.2d
389, 391 (Tenn. 1956); Black’s Law Dictionary 1070 (8th ed. 2004) (defining “next of kin”
as “[t]he person or persons more closely related to a decedent by blood or affinity” and as
“[a]n intestate’s heirs – that is, the person or persons entitled to inherit personal property
from a decedent who has not left a will.”). Tennessee courts have long recognized that “[t]he
strict legal meaning of the phrase ‘next of kin’ is ‘next or nearest in blood.’ In ascertaining
who the next of kin is, the law follows the line of consanguinity. Such is the general rule of
the common law. It is the same in this state under our general statute of distribution.”
Helms v. Elliott, 89 Tenn. 446, 450, 14 S.W. 930, 931 (Tenn. 1890); see also, e.g., Sneed v.
Henderson, 211 Tenn. 572, 576-77, 366 S.W.2d 758, 760 (1963); In re Estate of Dobbins,
987 S.W.2d 30, 36 (Tenn. Ct. App. 1998); House v. Gibson, 827 S.W.2d 310, 311-12 (Tenn.
Ct. App. 1991). Tennessee’s statutory laws of distribution and dissent, intestate succession,
“follow the lines of consanguinity.” Union Planters Nat’l Bank v. Corbitt, 474 S.W.2d 139,
143 (Tenn. Ct. App. 1971); Black v. Washam, 421 S.W.2d 647, 603 (Tenn. Ct. App. 1967).

In this regard, Tenn. Code Ann. § 31-2-104(b) (2007) states that when an intestate
decedent has no surviving spouse, his or her estate passes as follows:

(1) To the issue of the decedent; if they are all of the
same degree of kinship to the decedent they take equally, but if
of unequal degree, then those of more remote degree take by
representation;

(2) If there is no surviving issue, to the decedent’s parent
or parents equally.

12
The term “consanguinity” is both a lay and technical term. Bryan A. Garner, A Dictionary of
Modern Legal Usage 204 (2d ed. 1995). It connotes relationship by blood. Tudor v. S. Trust Co., 193 Tenn.
331, 334, 246 S.W.2d 33, 34 (1952).

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Even though the parents and the children of a decedent are both related to the decedent in the
same degree, the children of the decedent have the preference. 2 Jack Robinson et al.,
Pritchard on the Law of Wills and Administration of Estates § 567, at 65 (6th ed. 2007).

Based on these principles, the decedent’s fiancée does not have authority to decide on
the disposition of his remains because she is neither a spouse nor related to the decedent by
blood. Both the decedent’s child and the decedent’s mother are related to the decedent by
blood and are related to the decedent in the first degree. However, between these two
persons, Tenn. Code Ann. § 31-2-104(b) gives the preference to the decedent’s child. Thus,
applying the right of sepulchre, the decedent’s child’s right to decide upon the manner of the
disposition of the decedent’s remains is superior to that of the decedent’s mother.

E.

The decedent’s mother insists, however, that giving the decedent’s fourteen-year-old
child the responsibility to decide on the disposition of the decedent’s remains would be
absurd because the child is a minor. I find no basis in the common law or in the decisions
of this Court to create a categorical rule that a minor child cannot under any circumstance
decide on the disposition of a deceased parent’s remains.

Tennessee courts have not addressed this question directly. However, this Court has
recognized that “minors achieve varying degrees of maturity and responsibility (capacity)”
and that “conditions in society have changed to the extent that maturity is now reached at
earlier stages of growth than at the time the common law recognized the age of majority at
21 years.” Cardwell v. Bechtol, 724 S.W.2d 739, 744-45 (Tenn. 1987). Based on this
recognition, this Court has adopted the “mature minor exception” to the common-law rule
requiring parental consent before a physician can treat a minor. Under this exception, this
Court recognized a rebuttable presumption that persons between the ages of fourteen and
eighteen have the capacity to make their own decisions and to authorize medical treatment
without their parents’ consent. Cardwell v. Bechtol, 724 S.W.2d at 749.

The same recognition that prompted this Court to recognize the “mature minor
exception” has provided the Court of Appeals with the basis for concluding that minors have
the capacity to consent to an abortion and to obtain birth control information and supplies
without their parents’ consent. Roddy v. Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 576
(Tenn. Ct. App. 1996) (capacity to consent to an abortion); Decker v. Carroll Acad., No.
02A01-9709-CV-00242, 1999 WL 332705, at *14 (Tenn. Ct. App. May 26, 1999) (No Tenn.
R. App. P. 11 application filed) (capacity to seek and obtain birth control information and
supplies).

The General Assembly has also recognized that persons under the age of eighteen may
have the capacity to make significant and important decisions and to engage in activities that

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were traditionally viewed as adult activities. For example, children may begin working part-
time when they are fourteen years old.13 They may obtain a learner’s permit to drive a motor
vehicle when they are fifteen years old.14 They may lease a safety deposit box.15 They may
marry if they are at least sixteen years old or at a younger age with judicial approval.16
Minors may also obtain contraceptive advice and supplies,17 consent to prenatal care,18 seek
judicial consent for an abortion,19 and surrender a child for adoption.20

There are few reported opinions addressing application of the right of sepulchre to
circumstances involving the capacity of minor children to make decisions regarding the
disposition of the remains of a deceased parent. However, the opinion most on point
concludes that minor children have the capacity to make these decisions. The case involved
the death of a divorced father who had two daughters, fourteen and fifteen years old, who
were living with their mother. The decedent’s parents notified the daughters and the
decedent’s former wife of his death and received their authorization to make arrangements
for his burial. Accordingly, the decedent’s parents buried their son in Worcester,
Massachusetts where they resided. Stackhouse v. Todisco, 346 N.E.2d 920, 921 (Mass.
1976).

Following the burial, the decedent’s former wife filed suit on behalf of her two
daughters seeking authorization to exhume the decedent’s remains and bury them in Ashland,
Massachusetts where she and the children resided. The trial court recognized the right of the
decedent’s daughters to decide on the location of their father’s grave but determined that the
decision to move the decedent’s grave could be made only after one of the daughters reached
majority. Stackhouse v. Todisco, 346 N.E.2d at 922. The decedent’s former wife appealed
on behalf of the daughters. The Supreme Judicial Court of Massachusetts held:

In the absence of direction from the decedent, a surviving
spouse, or, failing such a spouse (as here), then the decedent’s

13
Tenn. Code Ann. § 50-5-104 (2008).
14
Tenn. Code Ann. § 55-50-311(a)(1) (2008).
15
Tenn. Code Ann. § 45-2-904 (2007).
16
Tenn. Code Ann. §§ 36-3-105(a), -107(a)(1)(A) (2005).
17
Tenn. Code Ann. § 68-34-107 (2006).
18
Tenn. Code Ann. § 63-6-223 (2004).
19
Tenn. Code Ann. § 37-10-303(b) (Supp. 2009).
20
Tenn. Code Ann. § 36-1-110(a) (2005).

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 next of kin, have a “possession” of the body so that they may
dispose of it for burial according to their wishes. . . . The judge
below recognized the right of the daughters as next of kin . . .
and the guardian’s only objection is that its effectuation was
postponed to the attainment of age (which we take to be
eighteen). We think that this was a sound precaution to ensure
that the decision as to reburial is not merely that of the mother
as guardian; but the judge is at liberty to authorize the removal
of the body earlier if he satisfies himself of the genuineness of
the daughters’ desire.

Stackhouse v. Todisco, 346 N.E.2d at 922. Accordingly, the Supreme Judicial Court of
Massachusetts recognized that the decedent’s two minor daughters could decide where their
father would be buried as long as the trial court was satisfied that the decision was theirs and
not their mother’s.

I reach the same conclusion as the Supreme Judicial Court of Massachusetts. Children
of the age of fourteen or older may decide on the manner of the disposition of the remains
of their deceased parent as long as they appear to have the capacity to make a decision of that
import and as long as the decision is their own. Based on the “mature minor exception”
recognized in Cardwell v. Bechtol, 724 S.W.2d at 749, I would recognize that a child
fourteen years of age and older is presumed to have the capacity to decide on the disposition
of a deceased parent’s remains. However, this presumption is rebuttable and thus may be
challenged in court. If the capacity of a minor child to decide on the disposition of his or her
parent’s remains is challenged, the question must be decided by the trier of fact. See Wells
v. McNutt, 136 Tenn. 274, 277, 189 S.W. 365, 366 (1916).21

II.

The second question certified by the United States District Court is as follows:

If the answer to Question #1 is such that the fourteen-year-old
minor child has no legal control or has no superior or exclusive
right of control over the disposition of the remains of his
deceased parent, is such a child nonetheless an “heir” of the
decedent as that term is used in § 62-5-511, Tennessee Code
Annotated, such that an operator of a crematory facility acting
without malicious purpose or bad faith, and not in a wanton or

21
By the same token, if the capacity of an adult to make a decision regarding the disposition of a
decedent’s remains is challenged, the decision regarding the adult’s capacity is a question of fact, not a
question of law.

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 reckless manner, in cremating the remains of the decedent in
accordance with the instructions set forth by the child is not
liable for damages in a civil action for such cremation, as
provided by the said statute?

I would answer this question by stating that a fourteen-year-old child, who has the capacity
to make his or her own independent decisions, may make a decision regarding the disposition
of his or her deceased parent’s remains. I would further answer the question by stating that
a fourteen-year-old child of a decedent is an “heir” of the decedent for the purpose of Tenn.
Code Ann. § 62-5-511(a)(2) (2009).

A.

This issue is separate and distinct from the first issue presented by the United States
District Court. It involves the “safe harbor” provision for operators of crematory facilities
that provides a defense against claims for civil damages in certain circumstances. The scope
of the current safe harbor provision in Tenn. Code Ann. § 62-5-511(a)(2) can be elucidated
by considering its history.

As part of the 1999 industry-backed legislation governing the disposition of a
decedent’s remains by cremation, the General Assembly included a provision that created a
“safe harbor” for operators of crematory facilities whose conduct was not “made with
malicious purpose, in bad faith, or in a wanton or reckless manner.” In accordance with the
original 1999 version of Tenn. Code Ann. § 62-5-511(a)(2), the operator of a crematory
facility could not be held liable for damages in a civil action for

[h]aving performed the cremation of the decedent . . . or having
released or disposed of the cremated remains in accordance with
the instructions set forth in the cremation authorization form
executed in person by the person authorized to serve as the
authorizing agent for the cremation of the decedent.

Tenn. Code Ann. § 62-5-511(a)(2) (Supp. 1999). In addition, Tenn. Code Ann. § 62-5-
511(b)(1) insulated an operator of a crematory facility from civil damages for refusing to
accept a dead human body or to perform a cremation when the operator “has actual
knowledge that there is a dispute regarding the cremation of the decedent . . . and the
operator has not received an order of the court having jurisdiction ordering the cremation of
the decedent.”

As of result of its decision in 2000 to repeal Tenn. Code Ann. § 62-5-503 regarding
the priorities for persons who could serve as authorized agents, the General Assembly was
required to rewrite the “safe harbor” provision in Tenn. Code Ann. § 62-5-511(a)(2).

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Accordingly, it amended Tenn. Code Ann. § 62-5-511(a)(2), and the immunity from liability
for civil damages now applies to crematory facility operators who have

performed the cremation of the decedent . . . or [have] released
or disposed of the cremated remains in accordance with the
instructions set forth by the decedent or an heir or personal
representative of the decedent.

The provision in the current version of Tenn. Code Ann. § 62-5-511(a)(2) applicable to “an
heir or personal representative of the decedent” is far broader than the 1999 version of Tenn.
Code Ann. § 62-5-511(a)(2). As it now reads, Tenn. Code Ann. § 62-5-511(a)(2) provides
a safe harbor to operators of crematory facilities who perform a cremation in accordance with
the directions of any person who is an heir or the personal representative of the decedent,
even if that person is not the decedent’s next of kin.

When a word in a statute has a well recognized common-law meaning, that meaning
will be given to the word unless a different meaning is required based on the context in
which the word appears or on the purpose of the statute. Lively v. Am. Zinc Co. of Tenn.,
137 Tenn. at 272-73, 191 S.W. at 978; Scholze v. Scholze, 2 Tenn. App. 80, 92, 1925 WL
1935, at *8 (1925). The technical meaning of the word “heirs” includes the class of persons
appointed by law to succeed to a decedent’s real estate in the case of intestacy. Alexander
v. Wallace, 76 Tenn. 569, 572 (1881); see also Tenn. Code Ann. § 31-1-101(5) (2007). It
has also been more broadly understood to mean the class of persons upon whom descent is
cast by the statute of descent, including children and grandchildren. Patterson v. Alexander,
509 S.W.2d 834, 835 (Tenn. 1974).

Unlike the term “next of kin,” the term “heirs” embodies a class of eligible persons.
It does not inherently differentiate and prioritize among the class of persons who qualify as
an “heir” of the decedent. Thus, a person who is an “heir” of the decedent may also be the
decedent’s next of kin.

When the General Assembly changes the language of a statute, judges must assume
that the change was deliberate. State v. Turner, 193 S.W.3d 522, 527 (Tenn. 2006). They
must also assume that the General Assembly means what it says. State v. Goodman, 90
S.W.3d 557, 564 (Tenn. 2002); Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996).
I have concluded that the General Assembly deliberately chose to use the broad term “heir”
rather than the narrower term “next of kin” in Tenn. Code Ann. § 62-5-511(a)(2) in order to
provide operators of crematory facilities with the broadest possible safe harbor from civil
damages.22

22
During the Senate Commerce Committee’s hearing on the legislation on March 20, 2000, Senator
(continued...)

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 The question as framed by the United States District Court presumes that the operator
of the crematory facility was acting without malicious purpose or bad faith and was not
acting in a wanton or reckless manner. Therefore, based on the limited facts provided by the
United States District Court, I would answer the second question by stating simply that the
decedent’s fourteen-year-old child is both the decedent’s next of kin for the purpose of the
application of the common-law right of sepulchre and the decedent’s heir for the purpose of
Tenn. Code Ann. § 62-5-511(a)(2).

III.

The third question certified by the United States District Court is as follows:

Does the defendant funeral home, H & F, Inc., fall under the
definition of a crematory facility for purposes of § 62-5-511,
Tennessee Code Annotated, given its role in the disposition of
the decedent’s remains?

Based on the limited facts provided by the United States District Court, I concur with the
Court’s conclusion that Sellars Cremation Service, Inc. is an operator of a crematory facility
and that H & F, Inc. is not.

______________________________
WILLIAM C. KOCH, JR., JUSTICE

22
(...continued)
Tim Burchett, one of the sponsors, stated that “[t]he amendment assures no liability to a cremation facility
or funeral establishment for their disposition of the body.” He also stated that the legislation

deletes all references in the present law to any type of required cremation form, alternative
container, and authorizing agent including section 62-5-503, which set up a priority of
persons who could serve as an authorizing agent. That was just more of the bureaucracy that
there was confusion over. So we just took that out. Remove the confusion.

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