Copyright © 2019, The Law Office of Alain Roman, PLLC
What can we learn from José José burial saga?
Mexican singer, José Rómulo Sosa Ortiz, or more widely known as José José or El Príncipe de la Canción , died on September 28, 2019. If you follow any news in Spanish, the death of José José is one of the most widely covered subjects. Primarily, one of the biggest issues is where the famous singer will be buried.
José José was survived by his spouse, Sara Salazar, and his three (3) children, José Francisco (known as José Joél) and Marysol Estrella, from his second marriage, and Sarita Sosa, from his current marriage.
The whole issue is that the children of José José’s second marriage want to bury their father in Mexico, while presumably Sarita Sosa wants the remains of José José to be buried here in Miami, FL.
Funeral and Disposition of the body under F.S. 497.607 and F.S. 497.005(43)
F.S. 497.607 and F.S. 497.005(43) provide guidance as to the burial and disposition of the body.
F.S. 496.607 states that “the legally authorized person contracting for cremation services shall be required to designate his or her intentions with respect to disposition of the cremated remains of the deceased in a signed declaration of intent which shall be provided by and retained by the funeral or direct disposal establishment.”
Second step is to look at the definition of legally authorized person under F.S. 497.005(43), which states:
(43) “Legally authorized person” means, in the priority listed:
(a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;
(b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while in military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;
(c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;
(d) A son or daughter who is 18 years of age or older;
(e) A parent;
(f) A brother or sister who is 18 years of age or older;
(g) A grandchild who is 18 years of age or older;
(h) A grandparent; or
(i) Any person in the next degree of kinship.
In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.
legally authorized person
First determination under F.S. 497.005(43)(a) is whether José José left an inter-vivos declaration providing instructions. Inter-vivos means during life. Typically, the inter-vivos declaration is done outside of the Last Will and Testament, although some courts recognize the ability to do so in your last will and testament.
Some courts have recognized that a person has the right to dispose of his or her own body by will. Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953 (Fla. 4th DCA 2005). Where the decedent has expressed his exclusive intention through the will, the testator’s wishes should be honored. Kasmer v. Guardianship of Limner, 697 So. 2d 220, 221 (Fla. 3d DCA 1997). However, a testamentary disposition in a last will and testament is not conclusive of the person’s intent if it can be shown by clear and convincing evidence that he or she intended another disposition of his body. Cohen v. Guardianship of Cohen, 896 So. 2d 950, 954 (Fla. 4th DCA 2005).
From what I can ascertain based on the information that has been made public, José José did not have a last will and testament nor a inter-vivos declaration. Therefore, we must move our analysis to F.S. 497.005(43)(b) and beyond.
José José was not a member of the military forces so F.S. 497.005(43)(b) will not apply.
We finally arrive at F.S. 497.005(43)(c), which authorizes the surviving spouse, Sara Salazar, the right to burial and disposition of the deceased body.
This outcome is identical to the common law rule which states that in the absence of testamentary direction to the contrary, a surviving spouse, followed by the next of kin, has the lawful right of possession of the body of the deceased for burial or other lawful disposition. Arthur v. Milstein, 949 So. 2d 1163, 1166 (Fla. 4th DCA 2007).
do José Joél and Marysol Estrella have any legal remedy
The answer to this question like any other legal question is it depends. First they must ascertain if there is any testamentary disposition or declaration of intent by their father.
Assuming that there is none, then they can attempt and petition a Florida Court with jurisdiction for relief. The children will have to show by clear and convincing evidence that it was José José’s wishes to be buried in Mexico.
Absent any written testamentary disposition or declaration of intent by José José prior to his death, Florida Courts are likely to show preference to the surviving spouse’s wishes.
However, is impossible to predict the outcome if the children file a case in Probate Court for relief as we don’t know all the facts and any single fact can sway a decision to one side or the other. At the end of the day it is the job of the courts to ascertain the wishes and intent of the deceased singer.
What do we learn from Jose Jose’s death?
The answer is simple, when the family is not united, specially when you have a blended family, feuds tend to exacerbate. Here, we have the children of José José fighting over who will take control of the father’s body. This situation is all too common for estate planning and probate attorneys.
Usually, people tend to downsize or ignore the problems going on within the family. Nobody wants to recognize that the family is not united or that different individuals may not always agree. In most cases love has nothing to do with it.
Even if you don’t have a lot of assets it is always helpful to talk to an estate planning attorney. It is our job to ask the hard questions and analyze the family dynamics.
Preparation is the key. You will be shocked by how much children fight over the inheritance of the parents, enough to break the family apart.
As a disclaimer, this is not legal advice and should not be substituted as such. This Article is for informational purposes and does not create an attorney-client relationship. You should always consult with a licensed attorney about your specific facts and circumstances.
If you found this Article useful make sure to share it with your family and friends.