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Florida Probate, Paternity and DNA

Written by on Sep 19, 2008| Posted in: Estate Litigation

FLORIDA PROBATE AND PATERNITY

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?

I recently encountered a dispute in the context of a paternity proceeding in a probate estate as to who has the rights to a decedent’s blood samples that were drawn during an autopsy. The answer was critical to the establishment of my client as the decedent’s biological child and important in assessing all the parties’ ultimate rights to the Decedent’s Homestead Property.

The Florida Supreme Court has never directly dealt with the issue, which implicates not just the parties involved in the dispute (in my case, the Decedent’s sister, was the Personal Representative and my client was the biological son attempting to establish paternity) but also involves medical examiners, law enforcement, State Attorneys, pathologists and surgeons, and funeral homes. Typically, these types of disputes arise when a coroner retains an organ (i.e. brain) following a forensic examination to determine the cause of death and then disposes of the organ while releasing the body to the family. This occurrence is so common that a class action suit was recently filed in federal court against all county coroners who had removed, retained, and disposed of body parts without prior notice to next of kin.The question is not whether the coroners/medical examiners mishandled or abused the body; it is whether the coroner’s failure to give the decedent’s next of kin he opportunity to retrieve a retained organ (i.e. brain) violates the next of kin’s due-process rights.

Last year’s Shilling v. Herrera 952 So. 2d 1231 (Fla. 3d DCA 2007) opinion arguably recognizes a cognizable claim to due process rights for the next of kin to a Decedent’s property. Does this extend or otherwise apply to a Decedent’s organs? The analysis begins with the answer to the question of whether Florida law gives the relatives a property interest in the Decedent’s body parts. Board of Regents of State Colleges v. Roth 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. The due process clause only protects those interests to which one has a “legitimate claim of entitlement.” Id. at 577.. This has been defined to include “‘any significant property interests,’ Boddie v. Connecticut, 401 U.S. [371] at 379 [91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)], including statutory entitlements. See Bellv. Burson, 402 U.S. [535] at 539 [91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)]; Goldberg v. Kelly, 397 U.S. [254] at 262 [90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)].” Fuentes v. Shevin, 407 U.S. 67, 86, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). To determine whether the Decedent’s next of kin’s interest in the body organs (i.e. brain, blood, tissue) rises to the level of a “legitimate claim of entitlement” protected by the due process clause, one must examine the laws of the state of Florida. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). In Roth, the Supreme Court stated that property interests protected by the due process clause “are created and their dimensions defined by existing rules or understandings that stem from an independent source such as state law . . . .” 408 U.S. at 577

A majority of the courts confronted with the issue of whether a property interest can exist in a dead body have found that a property right of some kind does exist and often refer to it as a “quasi-property right.” In re Estate of Moyer, 577 P.2d 108, 110 n.5 (Utah 1978); see, e.g., Arnaud v. Odom, 870 F.2d 304, 308 (5th Cir. 1989), cert. denied sub nom. Tolliver v. Odom, 493 U.S. 855, 110 S. Ct. 159, 107 L. Ed. 2d 117 (1989) (“Louisiana has indeed established a ‘quasi-property’ right of survivors in the remains of their deceased relatives.”); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir. 1984) (“Under Arkansas law, the next of kin does have a quasi-property right in a dead body.”) (Culpepper v. Peral Street Bldg., Inc. (Colo.1994) 877 P.2d 877 (No property right held by parents in their son’s dead body that would support a claim for conversion where son’s body mistakenly cremated); Shults v. United States (D.Kan.1998), 995 F.Supp. 1270 (applying Mississippi law, the parents of a decedent upon whom an autopsy had been performed filed suit claiming, among other things, a property interest in the body’s organs (including brain and heart) that had been removed during the autopsy (and later incinerated) and not included with the body for burial. The district court held that no property right exists in a dead body that would support an action for conversion. The court concluded that the right in remains recognized by Mississippi law is the family right to possess the body for burial and that that right does not create a property right in the organs removed for examination.Id., 995 F.supp. at 1275.

The Florida Anatomical Gift Act, codified at Fla.Stat. § 765.510 et seq. gives the next of kin the power to make an anatomical gift of any part of the body of the decedent, absent notice of the decedent’s contrary indication. Further, a family member more closely related to the decedent has the right to prohibit any anatomical gift from being made by a less closely related family member. The statute provides:

“(2) a member of one of the classes of persons listed below, in the order of priority stated an in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent’s body for any purpose specified in §765.510:

(a) The spouse of the decedent;

(b) An adult son or daughter of the decedent;

(c) Either parent of the decedent;

(d) An adult brother or sister of the decedent;

(e) A grandparent of the decedent;

(f) A guardian of the person of the decedent at the time of his or her death

In my view, the opinion in Schilling vs. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) coupled with the Florida Legislature’s enactment of the Uniform Anatomical Gift Act (Laws 1974, c. 74-106, § 1; Laws 1975, c. 75-20, §45; Laws 1984, c.84-264, §3. Renumbered from §732.910, by Laws 2001, c. 2001-226, §60, eff. Jan. 1, 2002 and codified at Florida Statutes § 765.510 et seq. may provide the state law predicate for recognized due process right for a family to a Decedent’s body parts. Simply stated, since the Schilling Court recognizes a due process right by the Decedent’s next of kin to be timely notified of the Decedent’s death and the commencement of probate proceedings to divide and distribute the Decedent’s property, it necessarily follows that the next receive sufficient notice that affords them the opportunity to retrieve body parts following forensic examination for an autopsy. When Schilling, the United States Supreme Court cases cited above regarding due process, and the Florida Anatomical Gift Act are taken together, I believe it demonstrates that in Florida, the next of kin have the right to dispose of the body by making a gift of it, to prevent others from damaging the body, and to possess the body for purposes of burial. Surely, the law should treat a decedent’s remains as not merely property, but something more. It should then be required that the next of kin have a due process right to be notified before body parts are disposed of for the sake of convenience.

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