Like many Americans, Hilliard Cohen did not die in the same community where he had lived. Mr. Cohen and his wife Margaret had moved from New York to Florida in 1998. By that time, the couple had been married over thirty years and had raised their four children plus two from Mrs. Cohen’s previous marriage.

Six years before moving to Florida, Mr. Cohen had signed a will that included instructions about how he was to be buried. He wrote that he wanted "a traditional Jewish burial" in his family’s plot at Mount Hebron Cemetery in New York. After the move to Florida, however, he talked to his wife and at least one of his children about being cremated, and his ashes buried in Florida.

Mr. Cohen’s brother and sister did not get along well with Mrs. Cohen, and when he died they insisted that his body should be transported to New York for burial in the family plot. Because Mrs. Cohen was not Jewish, that would effectively mean that they could not be buried together. The family ended up having to submit the question to the Florida courts for resolution.

Mr. Cohen had never written or signed anything about his burial wishes after the 1992 will directing burial in New York. The court found, however, that the instruction in his will was ambiguous, and that testimony needed to be introduced to determine what he had meant by his instructions. One principal cause of ambiguity: since Mrs. Cohen could not be buried next to him, it was impossible for him to have a "traditional Jewish burial" in the family plot.

During the trial, Mrs. Cohen listened to a rabbi testify that cremation would be a violation of Jewish law. She changed her mind about having her husband’s body cremated; she testified that he had wanted cremation partly to save expenses and partly because he was angry with his brother at the time, but she did not want to violate her husband’s religious principles.

The trial court ultimately ordered that Mr. Cohen should be buried in Florida, next to the plot reserved for his wife. Mr. Cohen’s brother and sister appealed that ruling to the Florida District Court of Appeal.

The appellate court agreed with burial in Florida, but for different reasons. Burial instructions, ruled the judges, are not like property dispositions in wills. Changing funeral and burial arrangements does not require a written amendment complete with witnesses. The key is to effect the decedent’s actual last wishes. Cohen v. Guardianship of Cohen, March 9, 2005.

As is so often the case with legal disputes involving the end of life, a tremendous amount of disruption and expense could have been avoided if Mr. Cohen had written down his wishes. But at least in the case of burial arrangements, the written word is not necessarily controlling.

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