Metropolitan News-Enterprise


Monday, June 13, 2005


Page 1


Court May Deny Next of Kin Permission to Move Remains—C.A.


By Kenneth Ofgang , Staff Writer/Appellate Courts


California trial courts have broad discretion in determining whether to permit disinterment, even when the request is made by a surviving spouse, the First District Court of Appeal ruled Friday.

Div. Three affirmed an order by San Mateo Superior Court Judge Carl W. Holm, denying Fred Maffei’s request to remove his wife’s remains from her family’s crypt at Woodlawn Memorial Park in Colma.

Flora Maffei died suddenly of an aneurysm in 1982. She was, with her husband’s consent, interred in the Gabiati family crypt where the remains of her father were also interred.

Twenty years later, Fred Maffei told the cemetery he had decided to have his wife disinterred so that he could carry out her wish that she be cremated and that their ashes be placed in a single urn after their deaths. Woodlawn officials, however, said they would not permit the disinterment because Flora Maffei’s brother, the owner of the family crypt, would not consent.

Court Permission Sufficient

Maffei then petitioned the superior court to permit the removal under Health and Safety Code Sec. 7526. The statute, which has only been the subject of two prior published decisions, provides that if disinterment is objected to by either the cemetery or the next of kin, “permission by the superior court of the county where the cemetery is situated is sufficient.”

In support of his petition, Maffei explained that following his wife’s death, he did not carry out his wife’s wish to be cremated because he was too distraught to contest his 80-year-old mother-in-law’s wishes. Instead, he permitted his wife’s family to bury her in the family crypt at their expense.

He never told her family about her wish to be cremated, he acknowledged, and there was no evidence she told anyone other than her husband and two friends of that intent. He testified that he was seeking to disinter her remains because at age 80, he was likely nearing the end of his life and wanted to carry out the couple’s mutual intent.

If the petition were granted, he said, he would inter his wife’s ashes in a crypt which he purchased in 1985, in the same cemetery and building as her family’s crypt. He also said he planned to have the ashes of his second wife—he remarried 18 months after Flora Maffei’s death —placed there in a separate urn following her death. 

Brother Objects

Ernie Gabiati, Flora’s brother, objected to the disinterment, citing the length of time that had passed, and the closeness within the family, particularly between his sister and their mother. He testified that he had never been told prior to the trial that his sister wanted to be cremated.

In denying the petition, Holm agreed that the length of time that had passed and the fact the petitioner consented to the burial arrangements at the time were significant. He also cited the potential disruption of the other remains in the crypt, the fact that Flora Maffei probably would not have wanted her ashes to share a crypt with those of her husband’s second wife, and “the absence of a compelling reason to disturb the [repose] of the dead.”

Justice Joann Parrilli, writing for the Court of Appeal, said that while the statute is silent on the standards to be applied, “there is a well-established presumption against removing the remains of a deceased person,” based upon public health concern, respect for the dead, and the feelings of survivors.

The justice rejected the contention that a surviving spouse’s wishes are sufficient, in and of themselves, to overcome the presumption. She cited In re Terra (1952) 111 Cal.App.2d 452, in which the court held that a trial judge erred by giving undue weight to the wishes of the surviving spouse to disinter her husband’s remains in order to cremate them.

The appellate panel should also have considered the wishes of the cemetery authority, the fact that 10 years had passed since the burial, and the fact that the wife had taken an active part in the original decision to bury the remains at that cemetery.

The case is Maffei v. Woodlawn Memorial Park, A105260.


Copyright 2005, Metropolitan News Company