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Putative Spouses – Till Death Do Us Part?

Putative spouses – Till Death Do Us Part?

An interesting case of putative spouses – Two days after a man died in a Brooklyn hospital in November 2008, his wife signed an authorization for cremation of the body. The next day the hospital released the body to a funeral home and a day later the body was delivered to a cemetery and cremated.

This unremarkable series of events became remarkable in December 2008 when another woman claiming to be the decedent’s real wife (we’ll call her Wife No. 1) filed a lawsuit against the allegedly fraudulent wife (we’ll call her Wife No. 2), the hospital, the funeral home, and the cemetery. Wife No. 1 claimed that she and the decedent were married in 1980, that their marriage had never been dissolved, and that Wife No. 2’s alleged marriage to the decedent in November 2007 therefore was bigamous and void. In essence, Wife No. 1 claimed that Wife No. 2 had no authority to dispose of the decedent’s body and that she and the hospital, the funeral home, the cemetery were liable in damages for unlawfully disposing of the body and causing her (and her and the decedent’s children) emotional distress.

This mess was untangled by the application of the following legal principles: First, where two competing putative spouses come forward with proof of their respective marriages, there is a presumption that the second marriage is valid and that the prior marriage was dissolved by divorce or annulment. In view of the fact that Wife No. 1 failed to produce any evidence that her marriage to the decedent had not been dissolved before Wife No. 2 married the decedent, Wife No. 2’s marriage was presumed to be valid. And second, if the hospital, the funeral home, and the cemetery reasonably relied in good faith upon the instructions of Wife No. 2 to dispose of the body, they are shielded from civil liability. As the court explained: Hospitals, funeral homes, and cemeteries should not be required “to cross-examine grieving widows or widowers, children, parents, siblings or others to confirm the validity of the familial or personal status” nor should they be required “to conduct independent investigations of such persons.” Only if the hospital, the funeral home, the cemetery receives “incomplete or suspicious documents or other information that would cast doubt on the person’s authority to control the decedent’s remains” would they be legally obligated to conduct further inquiry.

Here, Wife No. 2 presented a Certificate of Marriage evidencing a marriage ceremony between her and the decedent in November 2007. The hospital, the funeral home, and the cemetery therefore had a reasonable basis to rely on Wife No. 2’s representations and authority as the decedent’s surviving spouse. As a result, the hospital, the funeral home, and the cemetery were not liable to Wife No. 1 for disposing of the body in accordance with Wife No. 2’s instructions. However, Wife No. 1’s claim against Wife No. 2 alone was allowed to proceed.

[Source material: Mack v. Brown, No. 2009-09685 (2d Dep’t March 8, 2011)]

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