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Paternity: Can a Decedent’s Body Be Exhumed for Genetic Testing?

Written by on Jan 8, 2009| Posted in: Estate Litigation

State’s highest court authorizes opening of decedent’s grave to resolve a claim by an individual to be the decedent’s child.

The rights of relatives to the body parts of their deceased family members has been the topic of much legal debate. [See Blog Entry dated September 19, 2008 Wait, Don’t Throw That Away! Do A Decedent’s Next Of Kin Have A Protected Right In The Decedent’s Blood Samples, Tissue, Organs And Other Body Parts That Have Been Removed And Retained By A Coroner For Forensic Examination And Testing?] The extent to which a court has authority over the dead body of the decedent was examined in the recent published opinion by the Maine Supreme Court in In re Estate of Kingsbury, 946 A.2d 389 (2008).

Estate of Kingsbury involved the probate of the estate of Bruce H. Kingsbury, who died in 2006, leaving a will nominating his daughter, Robin Whorff, as personal representative of the estate. Shortly after the will was admitted to probate, Terri L. MacMahan filed a petition in the probate court asserting that she is Kingsbury’s biological child, and requested for construction of the will as well as a determination of beneficiaries under the will.
In his will, executed in March of 1994, Kingsbury recited that he intentionally omitted Whorff from inheriting because he had otherwise provided for her during his life. He left his entire estate to Gloria A. Kingsbury, his wife at the time of the execution of the will, and appointed Gloria as personal representative. Kingsbury and Gloria were divorced in 2003, however, effectively revoking all bequests to her pursuant under state law. Whorff is Kingsbury’s child by a marriage prior to Kingsbury’s marriage to Gloria.

Specifically, McMahan alleged that she is Kingsbury’s daughter by Gloria A. Kingsbury, Kingsbury’s former wife, conceived while Gloria was in a prior marriage of her own. Having failed to reach an agreement with Whorff for genetic testing to determine if Whorff and MacMahan are half-sisters, MacMahan moved to compel Whorff as an individual to submit to DNA testing or, alternatively, for exhumation of Kingsbury’s body for DNA testing.

The probate court ordered Kingsbury to submit to DNA genetic testing, and if she refused, to have decedent’s body exhumed for purposes of paternity testing. The order was appealed and the case worked its way through the court system and arrived in the chambers of the state’s highest supreme court.

The court’s analysis began by recognizing that “although there is no property right to a dead body at common law, and once buried, a body comes within the “custody of the law,” the next of kin nevertheless “do have a protectable interest in the body that would allow them to challenge a disinterment.” Simply stated, the court held that Kingsbury was well within her rights to object to Whorff’s petition and refuse to volunteer herself for genetic testing and otherwise put up legal obstacles to any request for her father’s body to be exhumed.

The Court then looked at the Estate’s contention that the court lacks authority to order exhumation of Kingsbury’s remains for genetic testing. Like most states, Maine law confers equity jurisdiction on probate courts over all cases and matters relating to the administration of the estates of deceased persons, to wills and to trusts which are created by will or other written instrument:

“The Probate Court has equitable authority to decide all matters relating to the determination of Kingsbury’s heirs and administration of his estate, and may take any action necessary to resolve such disputes properly before it. We do recognize that the authority of the Probate Court is not without limit, and that there must be good cause or sufficient reason advanced to justify exercise of such broad power. In this case, however, MacMahan has presented an abundance of evidence that she is in fact Kingsbury’s daughter, and that evidence creates at the very least a reasonable probability that genetic testing of Kingsbury’s exhumed body, as ordered by the Probate Court, will reveal that MacMahan is the daughter of Kingsbury. Thus, the Probate Court was indeed authorized to order exhumation of Kingsbury’s remains for the purpose of genetic testing in connection with MacMahan’s petition.”

If this case were filed in Florida, there would be an issue as to whether paternity could be established when filed more than four years after the child reached the age of majority under Fla.Stat. ยง95.11.

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