BUSINESS LAW 101 / The Law and Death

By Albert L. Kelley, Esq.

Death is part of life.  It is the one major event that all of us will go through. It is also the one major event that few of us want to think about.  But the legislature has.  The legislature wants to protect us, even in death.  Believe it or not, they have passed numerous laws to protect us when we can no longer protect ourselves.  

Aside from use by a medical or research institution, it is illegal for anyone to buy or sell the body of a dead person.  It is in fact a first-degree misdemeanor.  It is not just the body that is protected. The law also protects where we are laid to rest.   It is a third-degree felony to willfully destroy or deface any tomb, monument, gravestone, burial mound, earthen or shell monument containing human skeletal remains or to damage any fence, railing, curb, or other thing intended for the protection or ornamentation of any tomb.  It is also a third-degree felony to remove, cut, break, or injure any tree, shrub, or plant within a memorial enclosure.  If a person removes any of the contents of any tomb or monument it is a second-degree felony.  If these activities occur during a riot, the penalties are increased one level.  

There are some exceptions to this law.  If a cemetery must relocate or remove bodies due to a natural disaster, or if a person obtains a court order to relocate a body, they may do so without being in violation.  

Laws also impact coroners, funeral directors and morticians.  Many people believe autopsies are done automatically.  There are a few situations where autopsies are required by statute, but if not required, an autopsy is not to be performed unless there is a signed consent by the deceased’s health care surrogate or next of kin.  If no next of kin can be found, the chief law enforcement officer must search for family and if none can be located between 48 and 72 hours, then the medical examiner may conduct an autopsy without written consent.  Regardless of the performance of an autopsy, it is unlawful to cremate a body within 48 hours of death.  A violation is a second-degree misdemeanor.

Occasionally, a body will be found in an unmarked grave.  These are often archaeological or historical burials.  While these burials may have historical significance, disturbing them may be improper and disrespectful of the dignity of those who have died.  Once an unmarked burial site is discovered, there are specific steps that must be followed.  What cannot be done is to damage or vandalize the site.  If someone discovers that an unmarked burial site has been damaged, disturbed or vandalized, they have an obligation to report it to law enforcement.  Failure to report it is a second-degree misdemeanor.  If law enforcement is able to catch the person who willfully damaged of disturbed the burial site, they can be charged with a third-degree felony.  

Al Kelley has worked as an attorney in Monroe County for the last 32 years. He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a legal YouTube channel. He serves as the Vice Chair of the 16th Judicial Circuit Professionalism Panel.  He also previously taught business law, personnel law, and labor law at St. Leo University. This article is offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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