When a funeral home, crematory, or cemetery mishandles a loved one’s remains, families face a second injury on top of the first — and one of the earliest questions is whether they are even the right person to do something about it.
The question comes up because California law does designate a specific person with the legal right to control disposition of remains. Families reasonably assume that if they aren’t that person, they have no claim. That assumption is wrong, and it stops people with real cases from pursuing them.
Here is who actually has the right to sue in California, and who can recover for the emotional harm.
Two Different Questions
It helps to separate two things that get conflated:
- Who has the legal right to control what happens to the remains? Answered by statute.
- Who can sue and recover damages when a mortuary gets it wrong? A broader group, answered by California case law.
Who Controls Disposition: Health & Safety Code §7100
California sets a strict order of priority for the right to control the disposition of a decedent’s remains:
- An agent under a power of attorney for health care with authority over disposition
- The surviving competent spouse
- The sole surviving competent adult child, or a majority of the surviving competent adult children
- The surviving competent parent or parents
- The sole surviving competent adult sibling, or a majority of the surviving competent adult siblings
- The next degree of kinship, by majority
- A conservator of the person or estate, where there are sufficient assets
- The public administrator, where there are sufficient assets
Two important wrinkles. Under Health & Safety Code §7100.1, the decedent’s own written instructions generally control and are binding on the person who would otherwise have the right. And a person’s priority is suspended if they have been charged with murder or voluntary manslaughter in connection with the death.
If you hold this right and a mortuary disregarded your instructions, buried someone who was supposed to be cremated, released remains to the wrong family, or acted without the authorization it was required to obtain, your claim is direct and unusually clean — the violation is of a right the statute expressly gave you.
Who Can Recover: The Answer Is Broader
This is the part families most often get wrong.
In Christensen v. Superior Court (1991) — a case arising from one of the worst crematory scandals in California history — the California Supreme Court squarely rejected the argument that only the person with the §7100 right, or the person who signed the contract, could recover for emotional distress.
The Court held that the class of people who may recover for negligently inflicted emotional distress is not limited to those with the statutory right to control disposition or those who contracted for the services. The duty runs to close family members who were aware that funeral or crematory services were being performed, and on whose behalf or for whose benefit those services were rendered.
In plain terms: adult children, siblings, parents, and spouses who knew the arrangements were being made and were part of why they were being made can generally sue in their own right — even if a different relative signed the paperwork, and even if someone else held the §7100 priority.
Why this matters practically
Families are rarely organized the way a statute imagines. One sibling lives closest and handles the arrangements. Another pays. A third flies in for the service. When the crematory returns the wrong remains, all three are devastated — and under Christensen, the two who did not sign the contract are not automatically shut out.
The limits
The duty is not unlimited. It reaches close family members who were aware of and connected to the services. A distant relative who learned about the mishandling years afterward, or a family friend, generally falls outside it. Whether a particular relationship qualifies is fact-specific.
No Physical Injury Required
A frequent worry: “I wasn’t physically hurt — do I have a case?”
Yes. These claims proceed on what California calls a direct victim theory of negligent infliction of emotional distress. Because the mortuary owed you an independent duty arising from the special relationship it entered into when it took custody of your family member, you are not required to have suffered physical injury, and you are not required to have witnessed the misconduct as a bystander. The emotional harm is the injury.
Negligent vs. Intentional Mishandling — Why the Distinction Matters
This distinction shapes which claims are available, what you have to prove, and what you can recover.
Negligent mishandling
Carelessness rather than intent: mixing up remains, losing them, cremating without authorization through poor record-keeping, failing to refrigerate, burying in the wrong plot. You prove the mortuary owed a duty, breached the standard of care, and caused harm. This covers the large majority of cases and reaches the broader Christensen class of family plaintiffs.
Intentional or reckless misconduct
A different category: selling body parts, commingling remains to cut costs, returning cement dust or other material instead of cremated remains, performing mass cremations while billing for individual ones, concealing what happened, or falsifying records afterward.
Where it can be proven, several things change:
- Punitive damages become available. Under Civil Code §3294, a plaintiff who proves oppression, fraud, or malice by clear and convincing evidence may recover punitive damages. In cases involving deliberate desecration or concealment for profit, these can dwarf the compensatory award.
- Fraud and consumer protection claims open up, including under the Consumers Legal Remedies Act — which carries its own attorney’s fee provision.
- Insurance coverage changes. Liability policies commonly exclude intentional acts, which affects who ultimately pays and how a case is valued. This cuts in complicated directions and is worth discussing with counsel early.
- Criminal exposure. Mutilating, disinterring, or removing human remains without authority is a felony under Health & Safety Code §7052, and the Cemetery and Funeral Bureau can act against licenses independently.
A note on intentional infliction of emotional distress
IIED is often the instinctive claim, but it carries a requirement that matters here: the outrageous conduct generally must be directed at the plaintiff, or committed in the plaintiff’s presence with knowledge that they are there. In Christensen itself, the Court found individual plaintiffs could not maintain IIED claims where they had not witnessed the misconduct or its immediate consequences.
Because remains cases are usually discovered long after the fact, this is a real constraint — and it is one reason the negligence and direct-victim NIED theories generally do the heavy lifting, with IIED pleaded where the facts genuinely support it.
Other Parties Who May Be Liable
Responsibility often extends past the funeral home you dealt with: the crematory operator (frequently a separate business), the cemetery authority, a body transport service, a hospital or care facility that released remains improperly, a coroner’s office, and any parent company or ownership group with control over operations and staffing.
Identifying every responsible entity early matters, because the party that made the mistake and the party with the resources to answer for it are not always the same.
Don’t Wait on the Deadlines
California’s statute of limitations for personal injury claims, including NIED, is generally two years. Contract claims carry longer periods.
Remains cases raise a wrinkle that genuinely helps families: the misconduct is often not discoverable for years, and California’s delayed discovery rule can postpone accrual until you knew or reasonably should have known of the injury and its wrongful cause. That said, the rule is fact-intensive and defendants fight it hard. If you suspect something went wrong, get advice promptly rather than assuming the deadline has passed — or that it hasn’t.
Talk to an Attorney Who Handles These Cases
If you believe a funeral home, crematory, or cemetery mishandled your loved one’s remains, you may have a claim in your own name whether or not you signed the paperwork or held the statutory right to control disposition.
Contact Cohen, Cohen & Cohen for a free, confidential consultation. Learn more about our funeral home, crematorium, and mortuary negligence practice, or read our overview of the most common types of mishandling.
This article is general information about California law, not legal advice, and does not create an attorney-client relationship. Consult an attorney about your specific situation.
