Legal fight keeps man from being cremated - Dallas News | myFOXdfw.com

Legal fight keeps man from being cremated

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DALLAS -

A Dallas man has been dead for 10 months, but his final wishes have not been carried out because his estranged wife of nearly 40 years won't allow them.

Joseph Smallwood's children said he wanted to be cremated.

"He wanted us to take them to White Rock Lake and scatter them there where we also scattered my grandmother's remains, his mother," said Comisha Stephens, Smallwood's daughter.

But his body has been sitting at the funeral home since February.

"His estranged wife decided that she didn't want him cremated or buried," Stephens said.

Smallwood married the woman in 1973. He left her shortly afterward and moved on with his life.

"No one was for sure whether or not he had divorced," Stephens said.

He had not and so she was legally able to step forward after his death and stop the cremation.

"It's heartbreaking because his soul is not at rest. His body is not at rest. He's just sitting in a funeral home," Stephens said.

Walter Musgrove represents the family and will soon go to court to try to have Smallwood's wishes carried out.

"I believe that obviously there's something personal, but I think she definitely knows that the law is on her side," he said. "When I spoke with her I said we're not necessarily trying to say you're not the wife, we're just saying can you sign these papers so we can honor this man's wishes."

Attorney Remeko Edwards is not involved in the case. He talked about the importance of a will.

"If there was a will then it would have been a probate issue that would have made his desires known to the family as well as to the unknown person or the wife," he said.

Still, Stephens is hoping her father's ashes can one day be washed away in the waters of White Rock Lake.

"Oh, absolutely hope and pray. I've been praying for 10 months to get this behind us," she said.

The estranged wife's attorney could not be reached for comment.

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