In the realm of estate planning, a sensitive topic that surfaces time and time again is how a person wishes to dispose of his or her body after death. This article will provide an overview on how to prepare for this circumstance and will outline what may happen if a person chooses not to provide for the disposition of his or her body upon death.
The issue of who has the authority to decide whether you will be cremated or buried becomes especially important when there is a chance that the decedent’s family has very set ideas on how their loved one should be honored as well as remembered- and if these plans run contrary to the decedent’s last wishes.
Such an issue is commonplace amongst couples whose respective families disapprove of their relationship. In this case, the decedent’s family wished for their son to have a Catholic mass for his funeral. Yet his fiancée knew that his loved one did not wish for this type of disposition. However, this sentiment was disregarded by the surviving family members. Such a conflict manifested into a legal battle between the parties. The pain in dealing with the death of their son and fiancé, coupled with this issue became too much to bear for these grieving individuals. So how can the decedent prevent such a situation from taking place?
Having an Appointment of Agent to Control Disposition of Remains Leaves Written Instruction for This Disposition
Section 711.002(g) of the Texas Health and Safety Code states that a person may leave written instructions for the disposition of his or her remains in a Last Will and Testament, a prepaid funeral contract, or a written instrument signed and acknowledged by the person.
Drafting an Appointment of Agent to Control Disposition of Remains provides the most desirable vehicle for such instructions. While a Will is an appropriate route for this type of disposition, this document may not get the opportunity to be examined before the body is disposed.
Written instructions may outline many different requirements according to the decedent’s wishes. Such specifications are not limited to the following: where the body shall be buried, where the ashes shall be scattered after cremation, budget for a memorial service or funeral, as well as the type of ceremony to be performed (religious, etc).
The Decedent Appoints the Agent
This designation must be in writing and signed, as well as acknowledged by the decedent before a notary. Yet a cemetery or funeral home has the right to rely on this document while being free from liability- unless there was actual notice of modification or revocation of this form.
A Priority List Goes Into Effect in the Absence of Written Instructions or Named Agent
The Texas Health and Safety Code, Section 711.002(a) provides a priority list of individuals who have the right to control the disposition of the decedent’s remains in the absence of written instructions or a named agent. The priority list follows in this order:
1) The decedent’s surviving spouse;
2) Any one of the decedent’s surviving children;
3) Either one of the decedent’s surviving parents;
4) Any one of the decedent’s surviving adult siblings; or
5) Any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
It is important to note that this list does not grant this right to a surviving partner. Therefore, it is essential for same-sex couples to execute this document. Planning for the disposition of remains will help save surviving parties of any disagreements on how the body should be handled after death. It will also ease the emotional burden by helping these individuals focus their energies on dealing with the loss of their loved one.
This article is not meant to be issued as legal advice. Consult with an estate planning attorney who is licensed in your state for more information.