I’m sure this question hasn’t even crossed your mind as being important. However, it has never been more important than it is in today’s culture. When I started in funeral service just 25 short years ago, families were pretty traditional. If the deceased died and had a living spouse he or she was in charge of the arrangements; or if there were no spouse, the children seemed to respect their deceased parent and their siblings enough to work together in planning the services. Sure, there was the time I had to inform the wife of 35 years that the beneficiary of her husband’s $50,000 life insurance policy was his girlfriend or occasionally a person would die with no identifiable next of kin but, for the most part funeral service was fairly routine.
Today, with a high divorce rate, increasingly blended families, individuals estranged from family due to discord, strong personalities, a rise in cremation, eHarmony and match.com, same sex couples and many skipping marriage altogether the funeral director must quickly and accurately ascertain who is legally in charge. It is very important both for the family and the person who is dying to make sure he or she has in place (legally) who they want in charge of their final arrangements so there are no surprises.
There is a legal priority which determines who is authorized to arrange for final disposition and interment or cremation of human remains. It is important to inform the reader that laws governing these types of situations vary from state to state. I am not an attorney offering legal advice and would recommend you consult an attorney if you have specific questions regarding the law. I share this information to hopefully help you have a better understanding of the importance of making sure you have planned properly in this important matter.
Here is a summary of priority as listed in Indiana Code 25-15-9-18:
1) A person granted the authority to serve in a Funeral Planning Declaration:
- This declaration is priority #1 in the eyes of Indiana law. It trumps nearly every other relationship.
- People use this form to ensure their wishes are carried out exactly as they wish with exactly who they want in charge.
- Use of this form is almost certain to cause hard feelings among those who have been legally passed over. Do not use this form without careful, thoughtful consideration.
- Reasons one would use a funeral planning declaration: Your wishes vary greatly from the legal next of kin’s, i.e. You wish to be buried and they wish to cremate you; you want to be buried by your first wife of 50 years and the person you married two years ago has other plans; you have no close family, so you designate a friend to handle your final arrangements; you are unmarried and want your significant other to be in charge, etc.
2) A person named in a US Dept. of Defense Record of Emergency Data (DD Form 93)
- Used if the decedent died while serving in the U.S. Armed Forces.
3) An individual specifically granted the authority in a Power of Attorney or health care power of attorney executed by the decedent. Most POA’s do not include authority for disposition rights, but some may.
4) The spouse of the decedent at the time of death. Rest assured in the vast majority of cases the spouse is still the one who takes care of the arrangements which is generally what each spouse wishes in a loving relationship. There are a couple of important exceptions though that seem to be increasingly common in the funeral process and people need to be aware of:
- If a petition to dissolve the marriage or for legal separation is pending with a court at the time of death, or
- If a court determines the decedent and spouse were physically and emotionally separated at the time of death, for an extended time, and that the separation clearly demonstrates an absence of due affection, trust, and regard for the decedent, it removes the spouse from having any authority in final arrangements.
- This is happening more and more and people need to be aware of this.
5) If there is no spouse at the time of death then the decedent’s surviving adult child or if more than one adult child is surviving, the majority of adult children.
- Majority rules here unless they can’t locate all of the children. In that case less than half of the adult children have the rights as long as they have made reasonable attempts to contact the other sibling(s) and are not aware of any opposition to the final disposition instructions by more than half of the surviving adult children.
6) Surviving parent or parents.
- If one of the parents is absent the parent who is present has the rights as long as they have used reasonable efforts to notify the absent parent.
7) Siblings are next in order of right of disposition.
8) The priority from here goes from the next degree of kinship (aunts, uncles, cousins) all the way to the local township trustee.
Fortunately, the majority of deaths do not experience any issues at all with rights of disposition but these challenges are increasing and need to be better understood.
Here are three actual scenarios:
Situation: A local man met a lady from another state via an online dating service. She was divorced and estranged from her two adult children. She moved here to live with her new boyfriend and within a couple of years developed terminal cancer. He lovingly cared for her until her passing. At the hospital he said, “Her wishes were to be cremated. She and her children did not get along and she was adamant that they not be included in her services.” Problem: He had no legal authority to make any final arrangements. Her surviving adult children were the legal next of kin no matter how estranged the relationship was at the time. Had she simply signed a funeral planning declaration naming her boyfriend as the person she wanted to carry out her wishes, there would be no legal issue. Outcome: I located her daughters in another state, informed them of her death and explained the situation. They signed a form to relinquish their rights and allow her boyfriend to carry out their mom’s wishes. They also attended her funeral prior to cremation and were able to experience some healing in the process.
Situation: A widowed gentleman died. He had instructed his brother and sister to make funeral arrangements for him and they came to the funeral home prepared to do so. Problem: He had a son in prison for selling drugs. A person does not lose the right of disposition just because they have committed a crime (unless of course he murdered his dad). Outcome: Prison officials allowed the son to express in writing his wishes for arrangements. These wishes coincided with what the deceased had wanted so the brother and sister paid for the funeral with the deceased’s funds. The son was not allowed to attend the funeral so we video recorded the service and he was allowed to view it in prison.
Situation: A man in his forties died and had a son who was 14 years old. The deceased was in the process of a divorce from the son’s mother. She came to the funeral home with their 14 year old son to make funeral arrangements. Problem: She had no legal right to make arrangements as they were in the process of divorce nor did their son since he was a minor. Outcome: The deceased’s parents graciously honored the wishes of their grandson and their soon to be former daughter-in-law, including them in the arrangements.
In each of the situations above there was favorable resolution, which is where the funeral director (often arbitrator) played a role. If however, a situation cannot be resolved satisfactorily, it would have to go to court for resolution while dear ole dad or mom waits at the funeral home.
I realize legal scenarios are difficult to read and understand but I trust this will help you realize the importance of planning ahead, getting good advice, and making sure you have everything in order when that time comes. Please let me know if I may be of help to you.
Question: Do you have a situation that you need advice on regarding who will have the right to make your final arrangements?