Providing for the Disposition of Your Body at Death

In my last post, I discussed making organ donations at your death. Hopefully you will take advantage of making such organ donations to give others an opportunity for a longer lifespan.

But prior to your death, another matter to consider is whether you will be buried or cremated, and what happens if you do not make that election. Who has the right, and who does not, to decide what happens with your body upon your death?

There are basically three scenarios:

1. The decedent during his or her lifetime.

The Texas Health and Safety Code provides, Section 711.002(g) 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. As noted in my post about organ donations, it is generally not wise to leave such instructions in a Will, as the Will may not be examined prior to the disposition of the body.

The written instructions can impose various requirements, such as the disposition of the body, where the body is to be disposed, how much to spend on the funeral or memorial service, and even where the ashes are to be scattered following cremation (as well as who has the right to scatter the ashes). You will be surprised as to how often these issues are debated among family members. In fact, one of the first battles following the death of J. Howard Marshall was not over the money, but whether his son or Anna Nicole Smith would have the right to bury or cremate the body and who could dispose of the ashes.

2. A person appointed by the decedent.

The Health and Safety Code also provides in Section 711.002(a)(1) that a person may appoint an agent to control the disposition of his or her remains. This designation must be in writing and signed and acknowledged by the decedent before a notary. The designation must be in substantially the same form as the form provided in Section 711.002(b). That statutory form can be found at this link. You should note that a funeral home or cemetery has a right to rely on the document without liability unless it has received actual notice of any modification or revocation of the form.

3. Persons in a Priority List Provided in State Law.

Finally, the Health and Safety Code provides in Section 711.002(a) that if the decedent did not leave written instructions for the burial or disposition, nor named an agent to make such an arrangement, then there is a priority list of the persons who have a right to control the disposition of the body, 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.

Now you should note that there is nothing in the above list that allows for an unmarried partner (straight or gay) of the decedent any right to control burial or cremation. Persons who want an unmarried partner to have this right will need to execute the statutory appointment.

In addition, there is nothing that distinguishes which of the surviving children or parents have the right to make this decision. What if divorced parents disagree about the burial of a child, or siblings disagree over the burial of a parent? A funeral home in such an instance can require a court order before accepting a decedent’s remains. Section 711.002(k) of the Health and Safety Code provides that the funeral home or cemetery has no liability for refusing to accept remains without a court order in the event of a dispute.

One final note of interest—if a spouse is found criminally responsible for the death of the decedent, then their right to control the disposition of the body can be removed under Texas Probate Code Section 115. The interesting aspect of this is that only the surviving spouse’s right is addressed and no other person. Theoretically, the way the law is currently written, a child could be criminally involved in the death of a parent, and then have the parent’s body cremated. I would argue that this law needs to be broadened to provide a restriction on any person responsible for the decedent’s death.

Because the disposition of your body at death can lead to disagreements (and even legal action) during a very emotional and trying time, it is best that you set out in writing exactly how you want this handled. While difficult to face, doing so now will make everything flow much more smoothly after your death.