RC 517.23 permits an individual who is a next of kin of the decedent to file an application to have a body exhumed and/or moved from one burial place to another.
Unless the decedent was cremated or the death certificate clearly identifies the death was from a non-contagious/infectious cause, the applicant must obtain a permit or letter from the health department that specifically states that it has been issued in compliance with RC 517.23(B) and that the decedent did not die of a contagious or infectious disease. To obtain this permit or letter, it is necessary to contact the health department/registrar in the county in which the decedent died. The Court may waive this permit or letter if the death certificate definitively indicates the death was a result of other than a communicable disease. Additionally, the applicant must obtain waivers from all other next of kin of the decedent, the cemetery where the decedent is buried, and from all beneficiaries under the will, if the decedent died with a will.
A surviving spouse does not need to obtain the approval of the Probate Court to disinter remains; rather, only the consent of the cemetery at which the decedent is interred is required.
Items necessary to file an Application for Order to Disinter Remains with the Court:
- A signed and notarized application is filed in the probate court of the county in which the decedent is buried;
- Permit from the Board of Health (or other appropriate agency) authorizing the disinterment as described above.
- Copy of Driver’s License or Government issued picture ID of the applicant;
- Applicant must be eighteen (18) years of age or older;
- A certified copy of the death certificate;
- The base court cost deposit is sixty-five dollars ($65.00) plus costs for proof of notices ($1.00 per page);
- Waivers from next of kin, beneficiaries under the will, and the cemetery; and
- Complete the Probate Forms listed below.
Within thirty (30) days of the Court issuing the Order to Disinter Remains, the Applicant must assure that the cemetery where the reinterment occurs executes and files with the Court a completed Verification of Reinterment.
Frequently Asked Questions
Disinterment of Human Remains (Non-Fetal)
Once non-fetal human remains have been buried, the Probate Court has exclusive jurisdiction to authorize the removal (disinterment) and reburial (interment) of those remains by anyone other than the surviving spouse. The following information pertains only to non-fetal human remains. “Disinterment” means the recovery of human remains by exhumation, disentombment, or disinurnment.
Is a surviving spouse required to obtain court approval?
Not generally. The decedent’s surviving spouse, if at least 18 years of age and of sound mind, may file with the cemetery board or officers in control an application to disinter the deceased spouse’s remains. The application must recite the manner of death or the disease by which the decedent died, the place where the decedent’s remains are buried and where they are to be reinterred. The applying surviving spouse must pay the reasonable costs and expenses of the disinterment. The board governing the cemetery or the officers in control shall act upon the request within 30 days after the conforming application is filed and shall disinter the remains or grant permission for the disinterment. The probate court is not generally involved in this process.
Can disinterment be requested by other than a surviving spouse?
A person over 18 years of age and of sound mind who is not the surviving spouse may make an Application For Order to Disinter Human Remains by it filing with the Probate Court of the county in which remains are interred. The Probate Court’s approval of the disinterment must be obtained when the decedent’s spouse is not the applicant.
Who pays for the expenses of moving the remains?
Whether the surviving spouse or another person, the applicant is responsible for paying all of the reasonable costs and expenses of the disinterment. A non-spousal applicant filing with the court is also responsible for payment of the court costs associated with the proceeding.
For court proceedings, is a hearing required?
A hearing is required with certified mail notice, return receipt requested, unless the application is accompanied by written waivers of notices of hearing signed by the surviving spouse, by all persons who would have been entitled to inherit under Ohio law if decedent would have died without a will, by all persons inheriting under the decedent’s will, if there was a will, and by the board or officers in charge of the cemetery where the remains are interred. The filing of written waivers from all those entitled to notice permits the Court to waive the hearing.
Who gives the notice to those persons entitled to notice when notice is not waived?
The applicant is required to give the notice, serve it by certified mail, file an Affidavit of Service of Notice with the court attesting to the giving of the notice to those who have not waived, and file the postal service return receipt proof that notice has been given. Notice is not required to be given to persons whose names or places of residence are unknown and cannot with reasonable diligence be ascertained. An affidavit must be filed by the applicant relating to efforts to locate the persons, if any, who are not given notice and it must provide the reason for not giving the notice.
What if disinterment is against the decedent’s wishes?
If a person is 18, or older, and is an interested person (one who would have been required to be notified) and properly objects to the disinterment and establishes by a preponderance of the evidence at the hearing that disinterment would be against the decedent’s religious beliefs or ascertainable desires, then the Court shall not issue the disinterment order unless a compelling reason exists to allow it.
How long does the process take?
If the application is complete and accompanied by waivers signed by all interested persons, the Court’s Order to Disinter Remains may be issued in as little as 2 days. If a hearing is required the hearing may not be held until all persons have been notified and the required affidavit filed.
Is proof of reinterment required to be filed with the Court?
Reinterment is required to be completed within 30 days of the Court’s order permitting it to be done. The applicant is required to assure that a Verification of Reinterment is filed with the Court by the cemetery, or facility where the reinterment occurs.
Does the Applicant need an Attorney?
Due to the technical aspect of the legal process, the language, and the permanency of the outcomes, the court strongly recommends that all applicants seek legal counsel. A pre-filing discussion by the applicant with the involved cemetery is recommended.
Good legal advice will hasten the probate process, prevent costly mistakes, and lessen the chances that the applicant will be faced with suits by other heirs or family members.