In North Carolina, can a Chief Medical Examiner refuse to release a body to the surviving spouse or closest relative because that person is a suspect in the death?

Plain-English summary

The Chief Medical Examiner asked whether, after performing required duties, he should release a body to a spouse or next of kin who claimed it for final disposition even when that person was suspected, arrested, or indicted for a crime connected with the death. The 1980 Attorney General answered yes.

The opinion quotes Floyd v. Atlantic Coastline Ry. and Parker v. Quinn-McGowen Co. for the spouse's or next of kin's right to possess a body for preservation and burial. Parker described a "quasi-property right" that others must not injure by unlawfully withholding the body.

The AG then examined Chapter 31A's slayer provisions. G.S. 31A-3(3) defined a slayer by conviction or specified pleas, so suspicion, arrest, or indictment alone did not trigger the article's bars on succession and other rights. But the opinion makes a separate, crucial point: Article 3 did not refer to possession of a dead body for burial at all. It therefore did not hold that a conviction would itself remove that possessory right.

The opinion noted that G.S. 31A-15 preserved common-law principles for matters the article did not address and that a wrong would have to be established consistently with due process. It did not decide the result after a conviction or guilty plea. Its answer concerned release after the examiner's duties where the claimant was only suspected, arrested, or indicted.

Currency note

This opinion was issued in 1980. Check current North Carolina law on body custody, medical-examiner duties, and any relevant court order before acting on a present dispute.

What this means for you

Medical examiners. The opinion says to release the body to the claiming spouse or next of kin after required duties are done despite the listed stages of criminal suspicion or accusation. It gives no rule for a convicted claimant.

Families and counsel. The AG treats possession for burial separately from inheritance rights. Chapter 31A's slayer article addressed succession and other listed rights, but not possession of a body for burial.

Common questions

Did an arrest or indictment alone justify withholding the body?

No. The opinion's express conclusion says the examiner should release it after performing official duties despite suspicion, arrest, or indictment.

Did the AG say a conviction would bar release to the spouse?

No. It noted conviction and specified pleas in Chapter 31A's slayer definition, but expressly said the article did not address burial-possession rights. The opinion does not decide the effect of a conviction on that right.

What if examiner duties were still underway?

The question and answer assume the examiner has performed duties required by law. The opinion does not set a release schedule during an unfinished examination.

Background and statutory framework

The opinion cites Floyd and Parker for the priority of a spouse or next of kin in possessing a body for burial. It quotes G.S. 31A-3(3)'s slayer definition and explains why the article does not decide the burial-possession question. G.S. 31A-15 preserves common law for matters outside the article, and the AG states that any claimed wrong must be established with due process. The practical need for prompt disposition supports its conclusion for a merely suspected or accused claimant.

Citations

• G.S. 31A-3(3)
• G.S. 31A-15
• Floyd v. Atlantic Coastline Ry., 167 N.C. 55, 83 S.E. 12 (1914)
• Parker v. Quinn-McGowen Co., 262 N.C. 560, 138 S.E.2d 214 (1964)
• Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975)
• Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975)
• Tkaczyk v. Gallager, 222 A.2d 226 (1966)

Source

• Landing page: https://ncdoj.gov/opinions/dead-bodies-release-to-spouse-or-next-of-kin-suspected/

Original opinion text

Requested By: Page Hudson, M.D. Chief Medical Examiner

Question: Should the Chief Medical Examiner, after performing his duties as required by law, release the body of the deceased to the spouse or next of kin who claims the body for final disposition even though he or she may be suspected of, arrested for or indicted for a criminal act in connection with the death of the deceased?

Conclusion: Yes.

"The right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next or kin, and when the widow was living with her husband at the time of his death, her right to the possession of the husband's body for such purpose is paramount to the next of kin." Floyd v. Atlantic Coastline Ry., 167 N.C. 55, 57, 83 S.E. 12 (1914). "Upon the death of a husband or a wife, the surviving spouse has the primary right to the custody of the body for burial as well as the preparation therefor. (Citations omitted.) Our law recognizes that the next of kin has a quasi-property right in the body, not property in the commercial sense but a right of possession for the purpose of burial, and that there arises out of this relationship to the body an emotional interest which should be protected and which others have a duty not to injure intentionally or negligently. The rights of one legally entitled to its custody are violated if another unlawfully withholds the dead body from him. . . ." Parker v. Quinn-McGowen Co., 262 N.C. 560, 561, 138 S.E.2d 214 (1964).

Chapter 31A, Article 3, entitled "Willful and Unlawful Killing of Decedent," specifies that a "slayer" is barred from testate or intestate succession and other rights. "Slayer" is defined by G.S. 31A-3(3) to include a person who has been convicted of, plead guilty to, or tendered a plea of nolo contendere to a charge of the willful and unlawful killing of another person. Suspicion, arrest or indictment for such offense is insufficient to bar the person from such rights. Furthermore, the Article does not refer to the right to possession of a dead body for the purpose of burial. It is our opinion, therefore, that the Article does not apply to the right to possession of a dead body by a spouse or next of kin who is suspected of, arrested for or indicted for the willful and unlawful killing of the decedent.

However, as provided in G.S. 31A-15, the Article does not abrogate the common law with respect to "acts not specifically provided for." See Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975). "It is a basic principle of law and equity that no man shall be permitted to take advantage of his wrong, or acquire property as the result of his own crime." Lofton v. Lofton, 26 N.C. App. 203, 209, 215 S.E.2d 861 (1975). Even under these long-accepted principles, it must be established (in accordance with constitutional principles of due process) that the person has committed a wrong.

As a practical matter, final disposition of a dead body must take place within a matter of days after death. Although embalming and refrigeration may postpone the necessity for final disposition until judicial proceedings are complete, interference with the prompt and proper disposition of the body is a violation of the quasi-property right. See Parker v. Quinn-McGowen Co., supra. Adherence to established priorities for possession of a dead body also "(avoids) unseemly controversy over the remains of deceased persons." Tkaczyk v. Gallager, 222 A.2d 226, 227 (1966).

It is therefore the opinion of this Office that the Chief Medical Examiner, after performing his duties as required by law, should release the body of the deceased to the spouse or next of kin who claims the body, for final disposition even though he or she may be suspected of, arrested for or indicted for a criminal act in connection with the death of the deceased.

Rufus L. Edmisten
Attorney General

Robert R. Reilly
Assistant Attorney General