Skip to main content
(866) 465-5395 Schedule a Consultation (866) 465-5395 Schedule a Consultation

Are Ashes Marital or Separate Property?

| |

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.

Client Testimonials

They are amazing! I highly recommend anyone that is in need of assistance with child support hearings to seek out the expertise and experience of this law firm and staff! They handled my case quickly and I feel that my money was put to good use. Much appreciated! Nothing less than five stars!

Alana Deverson

I just want to say GREAT JOB! She is a no nonsense professional with years of experience that qualifies her as a skilled Family Law attorney. She is seasoned, sensitive, and most of all she cares. She made things easy for me. Definitely recommend!

Kimberly Colby

Overall I was pleased with the results of my divorce case. The entire Petrelli Previtera team truly cares about their clients. Luckily for me, I was paired up with an amazing team helping all the way. If you happen to work with this firm and with the lawyers you’ll be in great hands. It was such an excellent service and it was beyond I expected.

A Family Law Client Chevy Chase , MD

Serving Clients at the Following Locations

Bethesda4800 Hampden Lane, Suite 200 Bethesda MD 20814(301) 234-7409view details
Maryland5425 Wisconsin Ave Chevy Chase, MD 20815(301) 889-8085view details
ChicagoTwo Prudential Plaza 180 North Stetson Suite 3500 Chicago, IL 60601(312) 252-2085view details
Schaumburg1750 E. Golf Rd, Suite 382 Schaumburg, IL 60173(630) 491-9670view details
Texas500 W 2nd St Suite 1900 Austin, TX 78701(512) 883-1684view details
Washington DC1717 K Street NW, Suite 900 Washington DC 20006(202) 519-0366view details
Denver7900 E. Union Ave. Suite 1100, Denver, CO 80237(720) 821-6440view details
Princeton475 Wall St, Suite 214, Princeton, NJ 08540(609) 917 9560view details
Linwood210 New Road #15 Linwood, NJ 08221(609) 375-0351view details
Parsippany8 Campus Dr, Parsippany, NJ 07054(973) 310-5320view details
Philadelphia1845 Walnut Street 19th Floor Philadelphia, PA 19103(215) 523-6900view details
Montgomery County516 DeKalb Street Suite C Norristown, PA 19401(610) 924-2870view details
Doylestown123 N Broad Street, Doylestown, PA 18901(267) 938-4480view details
Abington1147 Easton Road, Abington PA 19001(610) 890-4833view details
West Chester203 W. Chestnut St., Suite 204
West Chester, PA. 19380
(610) 431-4012view details
schedule a consultation Today
Contact Us Fill out the form or call us today (866) 465-5395