The types of services that are held and what happens to your remains will generally depend on the person who has legal authority over your remains after your death. State laws determine who has the legal right to control the disposition of your remains. If you leave instructions in a legally enforceable written document, the person appointed as your agent in that document should have the right to oversee your final arrangements, subject to certain exceptions. In some states, an agent named in advance directives, a health care POA or last will has authority to direct disposition of remains.
A prepaid funeral contract or preneed cremation authorization form may also serve as written instructions. See funeral prepaying. Some states have appointment of agent forms that allow a person to appoint an agent to control disposition of remains.
In the absence of written instructions by the deceased, the next of kin has legal authority over a decedent's remains. The order of priority of the next of kin is specified by state laws. If you have a surviving spouse or domestic partner, he or she is usually deemed next of kin, unless the deceased was estranged from the spouse or partner. If you have a domestic partner, check the laws of your state to determine if your partner has the legal right to your remains.
If you do not have a surviving spouse or partner, the next of kin typically goes in the following order of priority: a majority of the adult children, parents, a majority of the adult siblings, and then other more distant relatives of the decedent such as grandparents, aunts, uncles, etc. See Reasons to Plan Your Funeral.If there are no known living relatives, a personal representative or executor of decedentís estate may have the right to control the funeral and disposition of remains. The order of priority of next of kin and whether an executor, personal representative or agent has authority over human remains varies from state to state.
How to Avoid a Dispute Over Your Remains
It is not unusual for family members to disagree over final arrangements for a loved one. One reason to make an estate plan is to prevent such disagreements from going to court. Court battles over a deceased personís remains can be very costly and create permanent damage to relationships. Also, if your last wishes include being an organ donor, it is important to understand that in some states, your next of kin can dispute your wishes on organ donation after your death.Many people mistakenly believe it is enough to make an oral statement to a partner, friend or relative about their memorial preferences. Unfortunately, a verbal statement is unlikely to be enforced if there is litigation over disposition of remains. To ensure your last wishes are carried out, you must put them in writing in a document that meets state law requirements.The form you should use varies from state to state. Some state legislatures have adopted forms specifically for appointing an agent, but many others have not. Consult an estate planning attorney licensed in your state for information on the type of document to use and make sure it can be located by the person you want to oversee your arrangements. See finding an attorney. Discuss your plans with someone close to you so there are no surprises at a time when your loved ones may be grief stricken.
Steps To Ensure Last Wishes Are Honored
If you are concerned about how your remains will be handled, the following is a list of steps you can take to have more control:1. Include instructions in your will regarding your preferences for cremation, burial, entombment, a viewing, and funeral services. Name someone to carry out your instructions. Note, if your will is not located immediately upon your death, your survivors may plan your services without knowing your last wishes.2. Write down your memorial preferences in a
Last Wishes Planner. There are several different types of planners available for recording memorial preferences. You can use one of the books featured on our last wishes planners page or print the free last wishes form featured on Pennyborn.com.3. If your state has a statutory form for appointing an agent to control disposition of remains, execute the form. Note: These forms are usually part of right of disposition statutes. If your state does not have an approved form, ask a lawyer to prepare an affidavit documenting your wishes.4. Enter into a preneed contract with a funeral home and prearrange your services. For maximum control over your funeral, burial, etc., making the arrangements in advance is one of the best options. Nevertheless, you should evaluate the pros and cons of this type of commitment. You may also want to consider making a Funeral Trust. There is no guarantee the funeral home will strictly follow your instructions. Funeral homes have been known to follow the instructions of surviving family members despite different instructions of the decedent in a preneed contract. You should also take the steps outlined above as a precaution to ensure your instructions are followed.
5. If your last wishes include helping others by being an organ or tissue donor, review our article on organ donation.
Reasons to Exercise Control of Your Remains
If you ask some people what they want to happen to their body after they die, they are apathetic. Many are content to let their surviving relatives make their final arrangements. Others have very strong feelings about their final resting place and how they want to be memorialized. If you are religious, you may want to ensure the burial traditions of your religion are carefully followed. If you are not religious, you may want to avoid being subjected in death to religious ceremonies that reflect the beliefs of a parent or spouse rather than your own.
Perhaps you have a fear of being buried or do not want to be cremated. You may want your ashes scattered in an area you hold sacred. Some people want to be buried in a family plot alongside other relatives. See burial options and cremation. Your partner may want the right to keep your ashes as a source of comfort, but may not have the right to do so unless he or she is appointed as agent for disposition of remains in a valid legal document.
If you want to control the disposition of your remains for any reason, you need to do so in a manner that is enforceable under the laws of the state where you are domiciled. To find applicable state statutes, refer to our state laws page. To learn more, contact the funeral home directors association in your state.
How Are Disputes Over Remains Resolved?
If there is a dispute over the disposition of human remains, the next of kin or another individual may petition the court for an order granting authority to take possession of the remains and direct the final arrangements. The mortuary holding the remains may also petition for a court order regarding disposition of decedentís remains. In some cases, the court may appoint an administrator to oversee the handling of the decedentís remains until the dispute is resolved.
In some situations, a family member may oppose the arrangements being planned, such as cremation. In such a situation, the individual may decide to file a request for injunctive relief, such as a temporary restraining order, to prevent the party with possession of deceasedís remains from having the cremation services performed.
While a dispute over the disposition of a deceased personís remains is typically a matter for the probate court, some states handle it differently. Consult a probate lawyer about the laws in your state.
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