When a person dies, their surviving spouse or next of kin generally has a right to the immediate possession of the body in order to make the funeral arrangements. The body must be in the same condition it was in at the time of death. Any unwarranted interference with a spouse’s or relative’s right to burial is an actionable offense.

If someone has wrongfully withheld the corpse of a loved one from you can sue for the emotional distress caused by their actions. A small number of courts require there to be some physical injury before you can recover, but the majority of courts will allow you to recover damages for just emotional distress. If the other person acted intentionally and maliciously in withholding the corpse, some courts have even awarded punitive damages in addition to the damages awarded for emotional distress.

Common Examples When a Corpse Is Wrongfully Withheld

Whether or not you can recover when someone wrongfully withholds a corpse from you often depends on the particular circumstances of the case.

Families have been able to recover from people who have wrongfully retained possession of a corpse as a lien for services rendered in transporting the body or preparing the body for burial. However, it has been held that it is not a wrongful withholding, if an undertaker refuses to bury a corpse until he has been paid and instead returns the body to the family so that alternative burial arrangements could be made.

Families have also been able to recover for emotional distress if someone refuses to turn over a body to the family until an investigation is made. However, a failure to immediately notify the deceased’s next of kin of his death, while called reprehensible, has not been held to constitute a withholding of a corpse.

The courts have also awarded damages to family members against someone, who for personal reasons, intentionally conceals a corpse. In addition, if a spouse has a greater right to the possession of their spouse’s remains, they can sue another relative for wrongful withholding.

Do I Need an Attorney?

Dealing with the death of a loved one is always a difficult and emotional time. If someone has refused to release to you the body of a loved one, you may be able to sue them for your emotional distress. A personal injury attorney can help you in getting the responsible party to cooperate and will be able to help you assert your rights and recover for any harm you may have suffered as a result of the wrongful withholding.