Interference with the Right of Sepulcher as a Cause of Action in New York

In New York, the right of sepulcher refers to the legal right of a decedent’s next of kin to the immediate possession of their loved one’s body for the purposes of burial or other final arrangements. This right is not only grounded in common law tradition but also in the deeply personal and emotional significance of caring for the remains of a family member. When that right is wrongfully denied or disrupted, the surviving relatives may bring a legal claim for interference with the right of sepulcher.

The Plaintiff Must Be the Next of Kin

The first requirement is that the person bringing the lawsuit is the legal next of kin. This usually includes close family members such as a spouse, children, or parents. The law recognizes that these individuals have the primary authority and responsibility to handle the burial or cremation of the deceased. A distant relative or unrelated party typically cannot assert this cause of action.

The Plaintiff Must Have a Right to Possession of the Remains

Next, the plaintiff must show that they had the legal right to possess the body of the deceased. This right naturally flows from being next of kin, but it must also be shown that the plaintiff was not otherwise disqualified or superseded by someone else’s claim or legal authority, such as a court-appointed administrator.

Interference with Immediate Possession

The plaintiff must demonstrate that the defendant interfered with their right to take possession of the decedent’s body without unnecessary delay. This interference could involve failing to release the body to the family, misplacing or mishandling remains, or otherwise obstructing access in a way that delayed or disrupted final arrangements.

The Interference Was Unauthorized

For the claim to succeed, the interference must have been without legal justification or permission. For example, a hospital or morgue cannot lawfully hold a body without notifying the next of kin or delay releasing it without cause. An unauthorized action means the defendant had no valid reason for the disruption.

The Plaintiff Was Aware of the Interference

The plaintiff must also have known about the interference. This element ensures that the emotional harm alleged is tied directly to the person’s actual experience of being denied access to their loved one’s remains.

The Interference Caused Mental Anguish

Finally, the interference must result in mental anguish. In these cases, courts generally presume that the denial of the right to bury or mourn a loved one causes emotional distress. Plaintiffs are not required to prove psychological injury in detail to meet this element.

Conclusion

Interference with the right of sepulcher is a distinct and sensitive legal claim in New York that recognizes the emotional harm suffered when a family member is denied the ability to properly care for and bury their deceased loved one. To succeed, the plaintiff must be the next of kin, have a right to the remains, and prove unauthorized interference that caused emotional distress. While this claim addresses a very specific and often heartbreaking scenario, it serves an important purpose in protecting the dignity of the deceased and the rights of grieving families.

Find the Law

“To establish a cause of action for interference with the right of sepulcher, plaintiff must establish that: (1) plaintiff is the decedent’s next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff’s right to immediate possession of the decedent’s body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish, which is generally presumed (2 N.Y. PJI2d 3:6 at 76–77 [2013] ).” Shepherd v. Whitestar Dev. Corp., 977 N.Y.S.2d 844, 846 (N.Y. App. Div. 2014)