Unger v. Berger
76 A.3d 510
Md. Ct. Spec. App.2013Background
- Ann R. Freeman executed a will in Florida (2007) naming Marilyn Berger as Personal Representative and expressing intent to be buried next to her husband in King Solomon Cemetery, New Jersey.
- Freeman later lived and died in Georgia (2010); Berger arranged burial in the family plot at Arlington Cemetery in Baltimore, Maryland.
- Elizabeth Unger (niece) petitioned in Georgia probate (Feb 2011) to probate the will seeking sanctions against Berger; she voluntarily dismissed that petition (Aug 2011) and later filed for disinterment in Maryland (Dec 2011).
- Unger’s Maryland complaint contained three counts: (1) petition for disinterment, (2) breach of fiduciary duty by Berger in administering the estate, and (3) specific performance to reinter in New Jersey.
- Berger moved to dismiss for lack of subject matter jurisdiction; Maryland circuit court dismissed the entire complaint as belonging to Georgia probate courts.
- Maryland Court of Special Appeals affirmed dismissal only as to the fiduciary/probate claim (Count II) but reversed dismissal of the disinterment and specific-performance counts (Counts I and III), holding Maryland courts may decide disinterment when the body is within Maryland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maryland court had subject-matter jurisdiction to order disinterment of a body buried in Maryland though will/probate matters were in Georgia | Unger: Because Freeman’s remains are buried in Maryland, Maryland has custody and exclusive power to order disinterment | Berger: Probate and related testamentary disputes belong exclusively to Georgia probate court; Maryland must defer | Held: Maryland court has jurisdiction to order disinterment of a body located in Maryland; dismissal of Counts I and III was erroneous (reversed) |
| Whether Georgia probate court had exclusive jurisdiction over the claim for breach of fiduciary duty in administering the estate | Unger: (conceded at oral argument) not contested here | Berger: Georgia probate court has exclusive original jurisdiction over estate administration and fiduciary claims | Held: Georgia probate court has exclusive jurisdiction over Count II; dismissal of that count was proper (affirmed) |
| Whether a Georgia probate determination was required before Maryland could order disinterment/reinterment | Unger: Maryland can proceed to consider disinterment without awaiting Georgia probate determination | Berger: Relief should be sought in Georgia first; any Maryland disinterment should be supported by Georgia order | Held: Not required; once buried the body is not part of the estate and Maryland may independently adjudicate disinterment based on territorial custody of remains |
Key Cases Cited
- Dougherty v. Mercantile-Safe Deposit & Trust Co., 282 Md. 617 (dead bodies are subject to control of a court of equity; disinterment is disfavored)
- Radomer Russ-Pol Unterstitzung Verein of Baltimore v. Posner, 176 Md. 332 (factors for disinterment: deceased’s wishes, next of kin, cemetery rules)
- Kline v. Green Mount Cemetery, 110 Md. App. 383 (no absolute right to disinterment; cemetery may be joined to bind it to orders)
- In re Estate of Robert Lee Medien, 286 Ill. App. 3d 860 (court cannot order exhumation when body is buried in another state)
- In re Estate of Thomas, 431 N.J. Super. 22 (disinterment for private interests requires clear showing of good cause)
- Snyder v. Holy Cross Hospital, 30 Md. App. 317 (a dead body is not part of the assets of the estate)