MICHAEL STEWART, Plaintiff, v. SCHWARTZ BROTHERS-JEFFER MEMORIAL CHAPEL, INC., SCOTT SOBEL, and JOYCE SOBEL, Defendants., 159 Misc. 2d 884

The executor, the decedent's gay companion, sought possession of the decedent's remains. He claimed that the decedent wished to be cremated without a religious ceremony. The family sought to have the decedent buried in accordance with religious ritual. In considering whether the executor had standing to bring suit, the court noted that absent testamentary direction to the contrary, the right to possession of a body for the purpose of preservation and burial belonged to the surviving spouse or next of kin. The court refused to extend familial status to the executor in the present context. However, the close relationship between the decedent and the executor and the strained relationship between the decedent and his family prior to his death supported the executor's standing as a representative of the decedent's wishes. Nevertheless, the evidence presented indicated that the decedent was uncertain of his desires. The decedent was aware of his family's inclination, yet failed to include ...