[1993/oagheade.htm]

OAG 93-69

October 14, 1993

Hon. Gwen Clore Vice

Chief Assistant Boone County Attorney

Office of the County Attorney

6024 Rogers Lane

P.O. Box 169

Burlington, Kentucky 41005

Dear Ms. Vice:

In your letter to this office dated September 7, 1993, you request an opinion as to an interpretation of KRS 72.450 which states as follows:

(1) A coroner who has possession of a dead body or a part thereof shall make a bona fide attempt to notify the spouse, if any, or next of kin of the decedent's death. In the event the coroner is unable to locate the spouse, if any, or next of kin, he may cause the body to be buried at the expense of the fiscal court or urban-county government, whichever is appropriate.

(2) In the event the body is buried at public expense, the coroner shall take possession of all money or other property found on or belonging to the decedent and shall deliver same to the fiscal court or urban-county government, whichever is appropriate. Any money or other property found on the body of the decedent or belonging to him shall be delivered by the coroner to the fiscal court or urban-county government, whichever is appropriate, to help defray burial expenses. Any excess funds shall escheat to such governmental agency one year thereafter.

(3) In lieu of having an unclaimed body buried at public expense, the coroner may deliver such body or part thereof to a state medical school in accordance with the provisions of KRS 311.300 to 311.350.

You state that Boone County, like all other governmental entities, is under economic constraints and is looking for cost effective methods of disposing of dead bodies. You ask whether the language of the above quoted statute encompasses cremations as a less expensive alternative to embalming and burial in a casket.

We find that the term "burial" has been defined by the courts consistent with Black's Law Dictionary as follows:

Burial is restricted to the act of interment.

People v. Rosehill Cemetery Co., 21 N.E.2d 766 (Ill. 1939).

Word 'burial' means an act of burying a deceased person, sepulcher, interment, act of depositing a dead body in the earth, in a tomb or vault . . . .

Brady v. Presnell, 169 S.E. 278, 280 (N.C. 1933).

The statute is therefore clear on its face. It is contemplated that the body of the deceased is to be interred and there is no mention of cremation.

Another statutory provision in Kentucky is as follows:

213.081 Permit to cremate or transport body

(1) No person shall cremate or cause to be transported for the purpose of cremation the body of any person whose death occurs in the Commonwealth, without first obtaining from the coroner of the county in which the death occurred, a permit stating the cause of death and authorizing the cremation or transportation for cremation of the body. The permit shall be filed immediately following cremation with the local registrar of vital statistics.

(2) The provisions of this section shall not apply to the cremation of fetal death remains in the absence of any indication of a criminal act.

However, this provision is not found in the chapter dealing with coroners but in the chapter dealing with vital statistics. KRS 213.081 is the general provision dealing with obtaining a permit authorizing cremation. However, the more specific provision dealing with coroners is found in KRS Chapter 72. The more specific statute must always prevail in determining legislative intent. In this case, the more specific statute, KRS 72.450, makes no provision for cremation. We can only conclude that in Kentucky at least, cremation is not an option for the coroner pursuant to KRS 72.450(1) in the case of an unclaimed body.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Joseph R. Johnson

Assistant Attorney General