Disposition of Body

A significant number of individuals are deeply concerned about how their bodies will be disposed of upon their death.  Many people have strong preferences regarding the disposition method, that is, burial or cremation.  Other individuals wish to spell out the particulars of their funeral in great detail such as the location of the burial, whether the viewing is open or closed casket, the type of religious service, the inscription on the headstone, the kind of flowers and music, and the contents of the obituary.  The legal systems of the ancient Greeks and Romans gave great weight to the deceased’s instructions concerning bodily disposition.  However, the common law courts recognized no property rights in a dead body.  This view gained widespread acceptance in the United States and thus a person’s desires regarding disposition of the body were considered to be only precatory.  A growing number of states have rejected this rule and recognize a person’s right to determine the final disposition of the body.

States vary tremendously with regard to the methods, if any, which a person may use to control body disposition.  Most states have a statutory list of individuals who make disposition decisions in a priority order.  The list typically begins with the decedent’s spouse, adult children, parents, and adult siblings, and continues with more distant relatives.  Depending on state law, Client may be able to use one or more of the following methods to document body disposition desires.

1. Inter Vivos Document — Client may be able to execute a document containing Client’s specific requests.  Certain formalities may be necessary such as being witnessed or acknowledged by a notary.
 
2. Will Provision — Client may be able to provide instructions in Client’s will.  These directions are valid to the extent they are acted on in good faith even if the will is never probated or if a court declares that the will is invalid.  The use of will provisions to give body disposition instructions is not recommended, however, because the will may not be found or read until after the funeral.
 
3. Prearranged Funeral — Client may plan ahead for the funeral with the desired funeral home.  Funeral homes are willing to make such arrangements which will help assure that Client’s particular requests are followed and relieve Client’s family from the heavy burden of making funeral arrangements.  Client may also want to consider whether to prepay the funeral costs.
 
4. Body Disposition Agent — A few states permit Client to appoint an agent to make body disposition decisions and may provide a statutory form for this purpose.
 
5. Conditional Gift in Will — If Client fears that close family members may attempt to interfere with Client’s wishes, Client may make gifts to these individuals conditioned upon following Client’s disposition directions.  The fear of losing a sizable gift may encourage individuals opposed to Client’s plans to carry them out or, at least, not object.

The problems that may arise if proper planning is not done was underscored by the recent case involving a soldier who was killed in Iraq and buried according to his father’s wishes in Oklahoma.  Now, the soldier’s mother wants him to be disinterred and moved to California which is supposedly the place her son indicated in telephone conversation where he wanted to be buried.

See Family bitterly split over soldier’s burial, AP, Oct. 13, 2005.

Special thanks to Douglas Cowan for bringing this article to my attention.