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Legal Authority of Deceased's Remains

By David Silver

David Silver teaches The Legal Environment of Business in ECU's Department of Finance. Dave is also a Partner with the Graham.Nuckolls.Conner Law Firm in Greenville, NC, concentrating in Elder Law

An often overlooked aspect of an estate plan is the final disposal of the body. Whether a body is buried, cremated, or donated, the location and type of religious or memorial service (if any), and the location of the final disposition of the remains are often deeply emotional subjects for individuals and their families. As long as everyone agrees on what should be done, this is not a contentious issue. However, when there is disagreement, the conflict can get very emotional, nasty and expensive. An understanding of the law regarding authority to dispose of a deceased's remains can help us avoid conflict between our well-intentioned loved-ones.

The best way to avoid conflict is to leave instructions. Any individual over the age of 18 can authorize the type, place and method of disposition of his or her own body, and these instructions have priority over anyone else's authority. Just in case someone leaves conflicting instructions, North Carolina prioritizes the instructions in the following order: 1) pre-need funeral (or cremation) contract; 2) health care power of attorney; 3) written will; 4) any other written statement if signed by the individual and witnessed by two persons at least 18 years old. Any instructions left by an individual that are not written and witnessed by two people does not have any legal authority.

A pre-need funeral (or cremation) contract with a local funeral home is usually the most efficient solution. An individual can include as much detail as desired, including the type of music to be played, paying for relatives to travel to a service, directing where remains are to be buried or spread, etc. The pre-need contract can be for a very small amount or up to $50,000.00. If the pre-need funeral contract is made irrevocable, then this contract will not be considered as a countable asset should the individual ever apply for Medicaid or Special Assistance.

In lieu of leaving written instructions, an individual can delegate someone to have authority over his or her remains. This delegation can be made in the same manner, and with the same order of priority, as for leaving written instructions as discussed above. Since most health care power of attorneys that I review contain such delegation, the health care agent is usually the person who has authority to make decisions regarding the remains. This creates the possibility for conflict if the health care agent is a second spouse but kids from a prior marriage expect to be in control of the remains. Many people incorrectly believe that the Executor or Administrator of the estate is in charge of the remains. While the Executor could be delegated to have authority over the remains in a written will, I rarely see this language included in a will (a person often is buried before anyone even looks at the will).

If there are no written instructions or written delegation of authority regarding the disposition of the remains, North Carolina statute grants this power to the following individuals in the following order of priority: 1) surviving spouse, 2) majority of surviving children over 18 who can be located after reasonable efforts, 3) surviving parents, 4) majority of siblings over 18 who can be located after reasonable efforts, 5) majority of persons in the next degree of kinship over 18 and can be located after reasonable efforts, 6) a person who has exhibited special care and concern for decedent, 7) public official, 8) responsible nursing home, 9) any willing person. While this chain-of-command does remove some ambiguity regarding authority over remains, there is still plenty of potential for conflict and litigation. If an individual dies while separated but before being divorced, the parents will be shocked to find out that the separated spouse still has authority over the body (there are laws against sale or desecration of a corpse, but cremation or donation of the body against the parents' wishes might be considered by a spiteful spouse). If there is disagreement within an even number of parties in any class (i.e. two parents, four kids, etc), a tie vote will have to be settled somehow.

Notice that a person holding financial power of attorney is not included in this chain-of-command. Therefore, while the holder of this power of attorney could pay for a pre-need funeral, if the individual does not personally sign the pre-need funeral contract, the body can only be disposed of according to the instructions in the contract if the appropriate authorized party subsequently agrees.

In order to save your estate and your loved ones from the potential of significant conflict, hassle and expense, please take the disposition of your remains into account when you create your estate plan.

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