An unusual test of the principle’s limits involved the death of a child of a divorcing couple from Susquehanna County, Kulp v. Kulp. The child was cremated. His mother maintained that the ashes were marital property and as such under the Divorce Code they should be divided, and each of the parents should receive an urn with half the ashes. The lower court found for the boy’s mother and decreed that the ashes should be divided and each parent should receive an urn to do with it as he or she deems appropriate.
There was no precedent in Pennsylvania regarding the division of remains. The Superior Court on appeal decided that the ashes did not constitute “property” to be divided under the Divorce Code. Under both an earlier Supreme Court ruling and the Pennsylvania Probate, Estates, and Fiduciaries Code, the Superior Court held that the overriding right to control a dead person’s body for interment is with the next of kin, a ruling that should not shock or surprise. However, the Superior Court in its opinion did state that the lower court did have the right to order a division of the ashes.
Having taken that position, the Superior Court rather surprisingly returned the matter to the lower court to consider the matter further, observing that it was inappropriate to ignore the father’s strong opposition to dividing the ashes. There seems to be a contradiction in the Superior Court’s position since it affirmed the right of the trial court to order a division of the ashes, but then implicitly ordered it not to do so by remanding the matter to the lower court judge for further consideration.