By Brian M. Vazquez
In 1882, Philadelphia was shocked by the theft of bodies from the Lebanon Cemetery, one of three city cemeteries for African-Americans. The shock was started by the discovery of six unidentified bodies in a wagon bound for Philadelphia’s Jefferson Medical College. This discovery caused Philadelphia’s minority community to demand the identity of the bodies and an investigation. In the ensuing investigation, the cemetery’s black superintendent admitted that he had let three grave robbers, one being his own brother, steal as many corpses as they could sell to various colleges for dissection. While the thefts were often pushed by the need for cadavers at medical schools, the thefts also exposed the lack of clarity on the law governing cadavers. The general repugnance to this and other grave robbing, though, spurred states to adopt laws governing the status, control, and disposition of corpses, including the procedure to be used in handling unclaimed bodies.
Luckily, most practitioners rarely have to deal with the disposition of dead bodies today. However, when they do, most practitioners must do research. This article is meant as a start to that research process for Kansas practitioners.
Kansas, like most states, has adopted relatively specific, though convoluted, laws governing the status, control and disposition of dead bodies of human beings. The provisions of K.S.A. 65-904 and 65-1734 cover most situations. If a family member or friend claims the body within 72 hours of death per K.S.A. 65-904, then the body is delivered to that person or agent. In the rare case of multiple people trying to control the disposition of the body, K.S.A. 65-1734 specifies the order of priority for the person authorized to control the disposition of the body. Interestingly, a holder of a durable power of attorney for health care decisions has priority over all others, including the spouse or child of the decedent, if that power was specifically granted to the attorney in fact.
If no person steps forward to claim the body, K.S.A. 65-904 requires the person or persons in charge of the deceased at the time of death to make, “…diligent search for relatives or friends.” If there is no response to the search within 96 hours after the commencement of such search, the body is treated as unclaimed. As an unclaimed body, the county official responsible for dealing with corpses, usually the coroner, assumes control under K.S.A. 65-902a.
When the corpse would be buried at county expense or in a pauper’s grave, K.S.A. 65-902a requires the county official or coroner to notify the anatomy department at the University of Kansas Medical School and advise the School of the existence of the corpse. The anatomy department has 36 hours to claim the body. The anatomy department will pay any costs for transportation if they claim the body. K.S.A. 65-901 allows the chairman or head of the anatomy department to receive the body.
If the anatomy department claims the body, K.S.A. 65-904 further requires the department to not dissect the body for 60 days. During those 60 days, any relative or friend may claim the body for internment. If the department does not respond to the county within 48 hours, their rights to the corpse is waived.
There are other limitations to the disposition of a cadaver to the medical school. K.S.A. 65-904 specifies that if the decedent can be identified and is an honorably discharged military veteran, then the body is not released to the medical school. The county official should seek to have the body buried as a military veteran under the provisions of Article 3, Chapter 73 of the Kansas Statutes. Also, K.S.A. 65-904 specifies that if the decedent had requested burial during their last illness, then the corpse would be buried.
If the medical school does not claim the body, then K.S.A. 22a-215 requires the coroner to cremate or bury the body. The authority to dispose of the body is, also, granted by the statute to the state or county officer responsible for the final disposition. Cremation or burial expenses shall be paid from any property found with the body. If there is no property found with the body or if the property is not sufficient to cover such expenses and if the deceased was eligible for burial assistance under the provisions of article 7 of chapter 39 of Kansas Statutes Annotated (the statutory section dealing with social welfare), such expenses for final disposition shall be paid in accordance with the provisions of K.S.A. 39-713d. Otherwise, such expenses shall be paid from the county general fund unless the deceased died in the custody of the secretary of corrections. Both K.S.A. 22a-215 and 65-904 require the expenses of final disposition of the unclaimed bodies of deceased inmates in the custody of the secretary of corrections to be paid by the department of corrections.
22a-215. District coroner; disposition of body of deceased; burial, when; expenses, how paid; penalties. (a) The coroner shall cause the body of a deceased person to be delivered to the immediate family or the next of kin of the deceased in accordance with the provisions of K.S.A. 65-904, and amendments thereto. If there is no immediate family or next of kin the coroner shall report and make delivery in accordance with the provisions of article 9 of chapter 65 of Kansas Statutes Annotated. If no such delivery is required, the coroner shall cause the body of such deceased person to be cremated or buried. The state or county officer responsible for the final disposition of the deceased person may authorize and order the cremation or burial of such deceased person. Cremation or burial expenses shall be paid from any property found with the body. If there is no property found with the body or if the property is not sufficient to cover such expenses and if the deceased was eligible for assistance under the provisions of article 7 of chapter 39 of Kansas Statutes Annotated expenses of final disposition shall be paid in accordance with the provisions of K.S.A. 39-713d, and amendments thereto. Otherwise, such expenses shall be paid from the county general fund unless the deceased died in the custody of the secretary of corrections. Expenses of final disposition of the unclaimed bodies of deceased inmates in the custody of the secretary of corrections shall be paid by the department of corrections.
(b) Any coroner who, over the protest of the immediate family or next of kin of the deceased, delivers or causes to be delivered the body of a deceased person for final disposition to a particular embalmer, funeral director or funeral establishment, shall be deemed guilty of a class B nonperson misdemeanor and upon conviction thereof shall forfeit the coroner's office.
65-901. Certain unclaimed dead bodies; use for medical, surgical and anatomical science. It shall be lawful for the chairman or head of the department of anatomy of the medical school of the university of Kansas, to claim and receive the dead body of any person required to be delivered under K.S.A. 65-902a, which would otherwise be buried at public expense or on grounds reserved exclusively for pauper dead; such body to be used within the state for the purpose of the advancement of medical, surgical and anatomical science and study, and the instruction of medical students.
65-902a. Delivery of unclaimed bodies to medical school; notice; expenses; receipts; records. It is hereby made the duty of each coroner or any other officer having charge or control over unclaimed dead human bodies which would otherwise be buried at public expense or on grounds reserved exclusively for pauper dead to notify immediately the chairman or head of the department of anatomy of the medical school of the university of Kansas, whenever any such body or bodies come into his possession, charge or control; and shall, without fee or reward, upon receipt of notice from the chairman or head of such department, release to the same, within seventy-two (72) hours after death, except those coroners' cases in which more time may be required, and permit said chairman or his agent to take and remove all such bodies for use within the state for the advancement of medical, surgical and anatomical science. All expenses in connection with the delivery of any such body to the department of anatomy of the medical school of the University of Kansas shall be paid by said department. Such notice shall be given in all cases, but no such body shall be so released if any relative or friend accept such body for burial pursuant to the provisions of K.S.A. 65-904; nor shall any dead body of any honorably discharged soldier, sailor or marine of the United States or other person whose burial is provided for under the provisions of article 2 of chapter 73 of the Kansas Statutes Annotated, be so delivered, but in such cases burial shall be made in accordance with such statutes.
Upon receiving notice of the death of any person, coming within the provisions of this act, the chairman or head of the department of anatomy of the university of Kansas shall within thirty-six (36) hours after such notice has been given authorize some person to receive the body and to transport it to the medical school of the university of Kansas. A receipt for the body shall be given to the person delivering same, which receipt shall be dated and entered in a book to be kept by said medical school and which record shall be open to public inspection. Such record shall be kept by register number of all bodies received. If the body is not needed, the chairman or head of said department shall so inform the proper officer, and the body shall receive decent burial; and if, within forty-eight (48) hours after notice has been given, said department does not notify the sender of such notice that the body is to be claimed, then said medical school shall be deemed to have waived all claims to such body.
65-904. When bodies not to be delivered to medical school; burial by relatives or friends; unclaimed body of deceased inmate. (a) Except as provided by subsection (b), if the deceased person during such person's last sickness requests to be buried, or if burial is provided for under article 3 of chapter 73 of the Kansas Statutes Annotated or acts amendatory thereof or supplemental thereto, the body shall not be surrendered, but shall be buried in the usual manner. No body shall be delivered as provided inK.S.A. 65-902a and amendments thereto, if claimed by relatives or friends within 72 hours after death, nor shall a body be delivered as provided in K.S.A. 65-902a and amendments thereto unless the person or persons in charge of the deceased at the time of death have made diligent search for relatives or friends and no response to the search has been received within 96 hours after the commencement of such search. No dead body received by the department of anatomy of the medical school of the university of Kansas under the provisions of this act shall be dissected prior to 60 days after date of receipt of the dead body. In case the remains of any person so delivered and received shall be claimed within 60 days by any relative or friend, they shall be given to such relative or friend for interment.
(b) The unclaimed body of a deceased inmate in the custody of the secretary of corrections may be cremated at the expense of the department of corrections.
K.S.A. 65-1734. Order of priority of persons authorized to dispose of decedents' remains; immunity of funeral directors, funeral establishments and crematories. (a) The following persons, in order of priority stated, may order any lawful manner of final disposition of a decedent's remains including burial, cremation, entombment or anatomical donation:
(1) The agent for health care decisions established by a durable power of attorney for health care decisions pursuant to K.S.A. 58-625, et seq., and amendments thereto, if such power of attorney conveys to the agent the authority to make decisions concerning disposition of the decedent's remains;
(2) the spouse of the decedent;
(3) the decedent's surviving adult children. If there is more than one adult child, any adult child who confirms in writing the notification of all other adult children, may direct the manner of disposition unless the funeral establishment or crematory authority receives written objection to the manner of disposition from another adult child;
(4) the decedent's surviving parents;
(5) the persons in the next degree of kinship under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may direct the manner of disposition;
(6) a guardian of the person of the decedent at the time of such person's death;
(7) the personal representative of the decedent; or
(8) in the case of indigents or any other individuals whose final disposition is the responsibility of the state or county, the public official charged with arranging the final disposition pursuant to K.S.A. 2002 Supp. 22a-215 and amendments thereto.
(b) A funeral director, funeral establishment or crematory shall not be subject to criminal prosecution or civil liability for carrying out the otherwise lawful instructions of the person or persons under subsection (a) if the funeral director reasonably believes such person is entitled to control final disposition.