How to Avoid a Dispute Over Your Remains
It is not unusual for family members to disagree over the final arrangements for a loved one. However, one important goal of estate planning is to prevent such disagreements from going to court. Court battles over a deceased person’s 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 legal next of kin can dispute your decision to be an organ donor after your death.
Many people mistakenly believe it is enough to simply 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 the right to control the disposition of your remains. To ensure your last wishes are carried out, you must put them in writing in a document that meets the requirements of state law.
The type of document you should use to appoint an individual to control the disposition of your remains varies from state to state. Some state legislatures have adopted forms specifically for appointing an agent, but many other states have not. Consult an estate planning attorney licensed in your state for information on the type of document you should use and make sure the document you use can be located by the person you want to oversee your arrangements. Discuss your plans with someone close to you so there are no surprises at a time when your loved ones may be grief-stricken.
Here are some of the steps you can take to ensure your memorial preferences are carried out, subject to the laws of your state:
Put instructions in your will regarding your preferences for cremation, burial, entombment, a viewing, funeral services, etc., and name an individual to carry out your instructions. Have your will properly executed. While a will is one method people use to provide instructions for the disposition of their remains, be aware that the contents of your will may not be known immediately after your death. If your will is not located almost immediately, your survivors may need to plan your services without knowing your memorial preferences.
Write down your last wishes for your remains. You can use a Memorial Preferences Planner which is one of many free estate planning forms provided by Pennyborn.com.
If your state has a statutory form for appointing an agent to control the disposition of your remains, execute the form in accordance with the requirements of your state. These forms are usually part of right of disposition statutes. If your state does not have an approved form, ask an attorney to prepare an affidavit documenting your wishes and have the affidavit properly witnessed and/or notarized.
Enter into a preneed contract with a funeral home or mortuary and prearrange all of your services. If you desire maximum control over your funeral, burial, etc., making the arrangements in advance is one of the best options. Nevertheless, you should evaluate all the pros and cons of making this type of commitment. Also, be aware that 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. If you use this method to plan your final arrangements, you should also take the steps outlined above as an additional precaution to ensure your instructions are followed.
If your last wishes include helping others by being an organ or tissue donor, visit our page on Organ Donation for more information.
Who Has the Legal Right to Your Remains?
After your death, your remains may be embalmed, cremated, buried or entombed. Your organs or your body may be donated. Various types of services may be held such as a viewing, funeral, wake or memorial service. 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.
The laws of your state determine who has the legal right to control the disposition of your remains. If you have given instructions for the disposition of your remains 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 an advance health care directive, power of attorney for health care or will has authority to direct the disposition of remains. A prepaid funeral contract or preneed cremation authorization form may also serve as written instructions. Some states have appointment of agent forms that allow a person to appoint an agent to control the disposition of his remains.
In the absence of any written instructions left by the deceased, the legal next of kin has legal authority over your remains. The order of priority of the next of kin is specified by state law. If you have a surviving spouse or domestic partner, he or she is usually deemed the next of kin, unless the deceased was estranged from the spouse or partner at the time of death. 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 registered domestic partner, then the next of kin typically goes in the following order of priority: a majority of the adult children of the decedent, parents of the decedent, a majority of the adult siblings of the decedent, and then other more distant relatives of the decedent such as grandparents, aunts, uncles, etc.
If there are no known living relatives of the decedent, then a personal representative or executor of the decedent’s estate may have the right to control the funeral and disposition of remains. The order of priority of the legal next of kin and whether an executor, personal representative or agent will have authority over human remains varies from state to state and is not uniform.
Why You May Want to Control the Disposition 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.
There are many other reasons for desiring control over the disposition of your remains. Perhaps you have a fear of being buried or do not wish 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. 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 the disposition of your remains in a valid legal document.
If you want to control the disposition of your remains for any reason, you will need to find out how to do so in a manner that is enforceable under your state’s laws. To learn more about controlling the disposition of your remains in your state, consult an estate planning attorney, contact a local mortician, or contact the funeral home directors association in your state.
How is a Dispute Over a Deceased Person’s 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. A mortuary or funeral home that is holding the remains may also file a petition for a court order regarding disposition of the decedent’s remains. In some cases, the court may appoint an administrator to oversee the handling of the decedent’s remains until the legal dispute is resolved.
In some situations, a family member may oppose the type of arrangements that are 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 the deceased’s remains from having the cremation services performed.
While a dispute over the disposition of a deceased person’s remains is typically a matter for the probate court, consult an estate planning lawyer licensed in your state for more information.
For more information on how to leave instructions regarding the handling of your remains and other final arrangements, see How to Plan Your Funeral and Last Wishes Planners. For a list of other important steps in getting your affairs in order, see Estate Planning.