An article recently published in the Washington Post by Eugene Volokh, a noted legal scholar, brought to our attention a New York case involving a novel legal question. The judicial opinion that decided the case, Jackson v. Jackson, phrased the question clearly:  “Are the ashes from the cremation of a 26 week old stillborn fetus marital or separate property?”

In its opinion, the court started its analysis by citing New York’s definition of marital property:  “all property [that is not otherwise defined as separate] acquired by either or both spouses during the marriage… regardless of how title is held.” This definition corresponds with Pennsylvania’s definition of marital property – property acquired during the marriage is generally marital property, even if it is only titled in one spouse’s name.

The court concluded that based on the definition of marital property, the ashes in question were marital property, because the mother both was impregnated and miscarried during her marriage to the father. The ashes were thus acquired during the marriage.

However, the court held that under New York’s public policy, the ashes of the stillborn fetus were separate property belonging to the mother. The court derived this public policy from New York’s reproductive laws, which “[give] to the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father.”

The court noted that the ashes could have transformed into marital property through the intent and actions of the mother, however the mother had made no indication that she wished to share ownership of the ashes with the father.

The facts of this case are not common, but they demonstrate complexities that can arise in determining what is marital property subject to equitable distribution in divorce. If you are contemplating a divorce, it is best to hire a skilled attorney who can handle this type of issue. The family law attorneys at Petrelli Previtera are here to help.