Rest in Peace?

On June 21, 2016, Indiana Courts handed down an interesting memorandum decision concerning a case involving where a woman was to rest in peace. Specifically, it concerned her husband, Ed Mitchell, and the Mount Zion Cemetery in Scott County. Mr. Mitchell had petitioned the Scott Circuit Court to obtain permission to change his deceased wife’s place of interment, and his father-in-law opposed the petition. The Court noted that the parties had been married approximately 29 years.

Shortly before her death, Kimberly Mitchell was asked if she would like to be buried in the family plot at Mount Zion Cemetery in Paynesville, Indiana. Her father offered two cemetery lots in the Smith family burial plot. She agreed to be buried there with her family. As things transpired, no headstone was purchased initially by Mr. Mitchell due to a lack of financial resources. He had planned to purchase a dual headstone for himself and his wife on the two cemetery lots in the Smith family burial plot, but Mr. Smith never transferred ownership of the lots to Mitchell.

About one month after Kimberly’s death, Mr. Mitchell claimed he purchased a dual headstone for his wife’s grave. However, unknown to him, a single headstone was purchased by the decedent’s sisters and one of his sons and placed in the grave.

Shortly thereafter, Mitchell purchased two burial lots in Franklin Cemetery in Washington County and filed his petition to move his wife’s body. Smith apparently indicated he would allow Mitchell to put a double headstone on his wife’s grave and be buried next to her if he would agree that only he could be buried in the plot next to his wife. The issue arose concerning an interpretation of the disinterment statute founded in Indiana Code 23-14-57-1. In material part, the statute provides that the remains of a deceased human may not be removed from a cemetery without a written order issued by the State Department of Health; or the written consent of the owner of the cemetery and the owner’s representative; or the individual who is a spouse at the time of the decedent’s death or surviving adult child or parent of the deceased.

Notwithstanding the apparent straight forward language of the statute, the Court found that a person specified in the disinterment statute does not have the absolute right to disinter remains as a matter of law. The rights of others who oppose disinterment may be considered by the Court. The Court went on to note four factors that should be considered concerning disinterment.


  1. Whether the initial resting place was made with deliberation and without mental reservation that at some future point, removal might be desired.


  1. Whether there are evidences of antagonisms and hostilities between the surviving spouse and the owners of the tomb or burial plot such as would prevent the surviving spouse from visiting the grave freely and without embarrassment or humiliation.


  1. Whether the deceased spouse had evidenced a preference for one location as opposed to another.


  1. Whether the disinterment would conflict with the deceased person’s religious beliefs.


The Court, weighing all of the evidence, concluded that Mr. Mitchell did not establish that his father-in-law prevented or would prevent him from visiting his deceased wife’s grave and in fact had allowed him to be buried next to his wife upon his death if he so desired. The Court also noted it was the decedent’s desire to be buried there. Considering all of these facts, the Court denied the husband permission to move his deceased wife’s body.

Our office has handled issues concerning deceased persons. Who may come to the funeral? Who “owns” the body after death? Who has the right to decide whether it is to be buried or cremated? These are highly emotionally charged issues, and we recommend consulting with an attorney to determine what rights you have.

Many of these issues can be resolved through use of a Healthcare Power of Attorney or the Funeral Directives provisions of Indiana law which allow a person to answer many of the anticipated questions.

Authored by Attorney: Ray Adler, ADLER TESNAR & WHALIN

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Adler Attorneys
136 S 9th St # 400
Noblesville, IN 46060
phone: (317) 773-1974
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