Disposition of Bodily Remains Can Be Controlled Through Proper Estate Planning
A story in Jacksonville's Florida Times-Union today - in which I was quoted by the reporter - highlights yet another good reason to engage in meaningful estate planning. The article (click here) describes how in different cases, family members and loved ones are subjected to unexpected and sometimes painful actions of others with regard to the disposition of bodily remains when someone dies. With proper planning, the conflicting desires of various related parties can be resolved, and potential litigation over that issue avoided. And, its fairly simple.
The Priorities According to the Applicable Law
In Florida, a "legally authorized person" for the disposition of remains, in the priority listed, includes:
1. The decedent, when a written intervivos authorization and directions are provided by
the decedent.
2. The person designated by the decedent as authorized to direct disposition pursuant to federal
law, as listed on the decedent's Department of Defense Record of Emergency Data - if the
decedent died while serving in any branch of the U.S. military service.
3. The surviving spouse, unless the spouse has been arrested for committing against the deceased
an act of domestic violence that resulted in the death of the deceased.
4. A son or daughter who is 18 year of age or older.
5. A parent.
6. A brother or sister who is 18 years of age or older.
7. a grandchild who is 18 years of age or older.
8. A grandparent.
9. Any person in the next degree of kinship.
If no family member exists or is available, the guardian of the deceased person at the time of
death; the personal representative of the deceased; the attorney in fact of the dead person at the time
of death, the health surrogate of the deceased person at the time of death; a public
health administrator; medical examiner, a representative of a nursing home; or a friend or other
person not listed who is willing to assume the responsibility as the legally authorized person.
The definition of the "legally authorized person" is found in Florida Statutes, Section 497.005 and Section 406.50.
Importance of Planning
Obviously, the highest priority is the person designated by the deceased, through a properly executed legal form, signed by the decedent prior to death, entitled "Authorization for Disposition of Remains," or something to that effect. This authorization should be signed in the presence of two witnesses, and it is recommended that it be notarized as well.
Your last will and testament will not always accomplish your desires with respect to the disposition of your remains - thus the need for the formal "Authorization of Disposition of Remains." Why? The will is often not found or reviewed until after the funeral. A direction in your will describing the desired disposition of yrou remains most likely won't have any effect because before your will can be followed it must be validated by the Circuit Court. That doesn't occur until after there is a death certificate and the Court has appointed a personal representative (executor). The appointment of the personal representative often does not occur for several weeks, even months. Without the separate written "Authorization for Disposition of Remains," in the hands of the person you want to exercise that authorization, family members are left to agree, or disagree.
The importance of designating the person or persons to arrange for the disposition of remains is more critical if you have a blended family, or if there is a likelihood of a dispute by family members over the proper disposition of your remains. As the Florida Times-Union article suggests, when there is a surviving spouse, who is not the mother or father of the children of the deceased spouse, there often is conflict over the place of burial.
My professional experience shows me that usually the surviving spouse wants to be buried next to, or at least close to, their deceased spouse. Obviously, the children from the prior marriage(s) wants their parent to be buried close to themselves or their other parent. Without a clear written authorization as provided above, the conflict is almost always resolved in the favor of the surviving spouse. Ill will between step-parent and step-children inevitably results.
Another situation where such planning is usually meaningful is when there is a divorce in progress, as in the Times-Union article's second case discussed. The clear message of such cases is that if you don't want the spouse you are divorcing to have the right to control the disposition of your remains, sign a proper authorization for the disposal of your remains granting the person you do want to make that decision the authority to do so - immediately upon the filing of the divorce action.
A third situation that arises more often than one would expect, is a dispute among siblings regarding the proper disposition of a parent's remains. Perhaps the most recognizable such dispute in recent memory was the dispute between the children of Ted Williams, the famous baseball star, over the disposition of his remains.
If any of these situations might apply to you, or any other circumstances that suggest a struggle between your loved ones over how to dispose of your remains, or if you believe that your loved ones will not honor your wishes for the disposition of your remains, then you should seriously consider the use of a formal "Authoriztion for Disposition of Remains" and appoint someone you trust to ensure that your desires are followed.
The Priorities According to the Applicable Law
In Florida, a "legally authorized person" for the disposition of remains, in the priority listed, includes:
1. The decedent, when a written intervivos authorization and directions are provided by
the decedent.
2. The person designated by the decedent as authorized to direct disposition pursuant to federal
law, as listed on the decedent's Department of Defense Record of Emergency Data - if the
decedent died while serving in any branch of the U.S. military service.
3. The surviving spouse, unless the spouse has been arrested for committing against the deceased
an act of domestic violence that resulted in the death of the deceased.
4. A son or daughter who is 18 year of age or older.
5. A parent.
6. A brother or sister who is 18 years of age or older.
7. a grandchild who is 18 years of age or older.
8. A grandparent.
9. Any person in the next degree of kinship.
If no family member exists or is available, the guardian of the deceased person at the time of
death; the personal representative of the deceased; the attorney in fact of the dead person at the time
of death, the health surrogate of the deceased person at the time of death; a public
health administrator; medical examiner, a representative of a nursing home; or a friend or other
person not listed who is willing to assume the responsibility as the legally authorized person.
The definition of the "legally authorized person" is found in Florida Statutes, Section 497.005 and Section 406.50.
Importance of Planning
Obviously, the highest priority is the person designated by the deceased, through a properly executed legal form, signed by the decedent prior to death, entitled "Authorization for Disposition of Remains," or something to that effect. This authorization should be signed in the presence of two witnesses, and it is recommended that it be notarized as well.
Your last will and testament will not always accomplish your desires with respect to the disposition of your remains - thus the need for the formal "Authorization of Disposition of Remains." Why? The will is often not found or reviewed until after the funeral. A direction in your will describing the desired disposition of yrou remains most likely won't have any effect because before your will can be followed it must be validated by the Circuit Court. That doesn't occur until after there is a death certificate and the Court has appointed a personal representative (executor). The appointment of the personal representative often does not occur for several weeks, even months. Without the separate written "Authorization for Disposition of Remains," in the hands of the person you want to exercise that authorization, family members are left to agree, or disagree.
The importance of designating the person or persons to arrange for the disposition of remains is more critical if you have a blended family, or if there is a likelihood of a dispute by family members over the proper disposition of your remains. As the Florida Times-Union article suggests, when there is a surviving spouse, who is not the mother or father of the children of the deceased spouse, there often is conflict over the place of burial.
My professional experience shows me that usually the surviving spouse wants to be buried next to, or at least close to, their deceased spouse. Obviously, the children from the prior marriage(s) wants their parent to be buried close to themselves or their other parent. Without a clear written authorization as provided above, the conflict is almost always resolved in the favor of the surviving spouse. Ill will between step-parent and step-children inevitably results.
Another situation where such planning is usually meaningful is when there is a divorce in progress, as in the Times-Union article's second case discussed. The clear message of such cases is that if you don't want the spouse you are divorcing to have the right to control the disposition of your remains, sign a proper authorization for the disposal of your remains granting the person you do want to make that decision the authority to do so - immediately upon the filing of the divorce action.
A third situation that arises more often than one would expect, is a dispute among siblings regarding the proper disposition of a parent's remains. Perhaps the most recognizable such dispute in recent memory was the dispute between the children of Ted Williams, the famous baseball star, over the disposition of his remains.
If any of these situations might apply to you, or any other circumstances that suggest a struggle between your loved ones over how to dispose of your remains, or if you believe that your loved ones will not honor your wishes for the disposition of your remains, then you should seriously consider the use of a formal "Authoriztion for Disposition of Remains" and appoint someone you trust to ensure that your desires are followed.
Posted by Randy Coleman at 3/17/2011 2:29 PM 
Categories: Health Care Power of Attorney, Living Will, Advance Directives in Florida, Estate Planning, Elder Care, Designation of Health Care Surrogate
Tags: advance directives designation of health care surrogate durable power of attorney end of life decisions estate planning attorney estate planning lawyer health care power of attorney living will disposition of bodily remains
Categories: Health Care Power of Attorney, Living Will, Advance Directives in Florida, Estate Planning, Elder Care, Designation of Health Care Surrogate
Tags: advance directives designation of health care surrogate durable power of attorney end of life decisions estate planning attorney estate planning lawyer health care power of attorney living will disposition of bodily remains
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