In mortuary law, the secondary right of disposition refers to the right of the state or local government to control the disposition of a corpse where no next of kin can be found according to statute. Typically when someone passes, the next of kin statute determines who gets to decide the details and be responsible for the disposition of the family member. These statutes go far down the line, allowing very distant family and friends to be the next of kin. However, the state has the secondary right of disposition, requiring it to ensure proper disposition of the body if: no next of kin can be found, the decedent did not leave any indication of preferred disposition, or no next of kin takes responsibility for the body.
The way a state disposes of an unclaimed body varies. Statutes have requirements to ensure certain decency standards are met and there are strict requirements for trying to find next of kin prior to the state exercising their secondary right of disposition. If the body is unclaimed, states often allow the body to be donated to medical schools and other public benefit institutions. If not, the body typically will be cremated. If the deceased was a veteran, the state will ensure proper burial at a veteran’s memorial if they qualify.
For an example of a state statute on the disposition of unclaimed bodies, see NJ Rev Stat § 40A:9-54 (2022).
[Last updated in October of 2023 by the Wex Definitions Team]