Funeral agent preference laws

When you die, someone the law refers to as a funeral agent has the right to decide how to dispose of your body and what to do with your remains.  Laws in each state define what legal document you should use to designate a funeral agent.  If you are not married, this is an extremely important part of estate planning.  If you don’t specify a funeral agent, state default rules will generally give your next of kin the legal authority to manage the disposition of your body.

Some states have personal preference laws; others cover the naming of designated agents.  Below is an overview of the information for each state.

Arizona Yes, personal preference law. See Arizona Statute Title 32-1365.01
Arkansas Yes, if arrangements are made prior to death. In order to be sure your wish to be cremated after death is not overruled by your next of kin, you must sign a form indicating your wish and have it witnessed by two people.
California Yes, personal preference law, found in California Health and Safety Code 7100.1 California also has a designated agent law found in CHSC 7100. In order to be irrevocable, you must also prepay for your funeral.
Colorado Colorado has a personal preference and a designated agent law. Title 15-19-104 of the Colorado Statutes gives you the right to make your own legally binding preferences known in a written document. Title 15-19-106 gives you the right to designate an agent to carry out the disposition. Title 15-19-107 gives a sample form you can use to make your wishes known (this form is legally binding). To find all of these statutes, go to the Colorado Legislature’s Web site and click on “CO Revised Statutes.”
Connecticut As of October 1, 2005, Connecticut citizens have the right to declare their own wishes for the disposition of their body. This declaration will be legally binding. In addition, citizens may appoint an agent to carry out those directions. If a person chooses not to make specific directions, he may still designate anyone he wishes to make those decisions and carry them out. The state’s Web site hasn’t yet updated their laws to reflect this, but the new law was Public Act No. 05-197, or Senate Bill 1124. If you run a Google search for these terms, you’ll come up with the law, which includes a form you can print out to make your wishes known.
Delaware Delaware has a form that can be filled out to state a person’s wishes; this form is considered binding.  It can be found at http://delcode.delaware.gov/title12/c002/sc03/index.shtml.  If you don’t leave a declaration of your wishes, the right to control disposition of your remains goes first to your spouse, 2nd to your personal administrator, 3rd to a majority of your surviving adult children, 4th to your surviving parents, 5th to a majority of your surviving siblings.
District of Columbia Residents have the right to designate an agent to make decisions about the disposition of the the body. Residents may also make written directions for the disposition of their body that supersede any other party’s wishes. Go to the DC statues http://tinyurl.com/3e59vh. These rights can be found   under § 3-413. Claim of human remains–Order of priority of next of kin.
Florida Florida status give preference to: (1) your intervivos statements, (2) your spouse, (e) your children and (4) your siblings. If a dispute occurs, it is filed with the Circuit Court. The Court will make a decision within 44 hours of the filing.Organ donation rules: Florida has no organ donation database. Yes, personal preference law.
Georgia Georgia law allows you to appoint an agent to direct the disposition of your remains within the state’s Durable Health Care Power of Attorney form. See http://law.justia.com/georgia/codes/31/31-36-10.html
Hawaii
Idaho Unfortunately, personal preference can only be established in a prepaid funeral arrangement. Also, one may only designate an agent through a prepaid plan.
Illinois As of January 1, 2006, Illinois citizens can declare their wishes for disposition in a written document that is legally binding. They may also designate an agent to carry them out, or to make any decisions if no specific instructions are left. The law allowing this is found under in chapter 755 of Illinois Statutes, Estates, Disposition of Remains Act. Click here and scroll down to look it up.
Indiana Yes, designated agent law. Illinois Code section IC 30-5-5-16 states that a health care power of attorney gives the “attorney in fact” the right to “make plans for the disposition of the principal’s body.”
Iowa
Kansas Kansas has a designated agent law which can be found in Statute number 65-1734. To find it, to the Kansas Legislature Web site which allows you to look up laws by statute number.
Kentucky Next-of-kin may challenge your wishes in court, but deference must be given to the deceased unless extraordinary circumstances exist.
Louisiana Wishes of the deceased will prevail if written and notarized.
Maine You may designate an agent for body disposition as well as your wishes.You can find this right in Title 22, §2843-A, no. 2 of the Maine Statutes.
Maryland
Massachusetts How too bad that Massachusetts citizens can only ensure their wishes are carried out by paying a funeral director before they’ve died. Massachussetts regulation number CMR 239, 3:09 states that if a pre-need (prepaid) contract is in force, then the funeral director shall obey it. Otherwise, the right to control the disposition of your body devolves along the usual next-of-kin line, whether you like it or not.
Michigan You may designate your wishes in your will. (But make sure everyone knows where the will is and what it says. Often the will isn’t read until after-the-fact!)
Minnesota There is a statutory duty to comply with the written wishes of the deceased, but next-of-kin have priority if your wishes are contested.
Mississippi As of July 1, 2004, your prepaid funeral contract is legally binding and cannot be overriden by your next of kin. It’s too bad the only way to secure your right to decide what happens to your body is to pay the funeral director ahead of time. Mississippi has the worst consumer protection laws in the country regarding prepaid funerals.
Missouri Yes, Designated Agent law. Chapter 194, Death – Disposition of Dead Bodies, Section 194.119, of the Missouri Revised Statutes, states that the next-of-kin has the “right of sepulcher” — the right to custody and control of the dead body. What’s interesting is that in Missouri, you can designate anyone you want to be your next-of-kin. The law says: “Any person may designate an individual to be his or her closest next-of-kin, regardless of blood or marital relationship, by means of a written instrument that is signed, dated, and verified.” The person you designate to be your actual “next-of-kin” has the ultimate legal authority to carry out your wishes. Click  here to read the law.
Montana
Nebraska Written or oral wishes of the deceased regarding disposition must be honored. In 2003, Nebraska also added a designated agent provision to their statutes. http://www.dhhs.ne.gov/crl/mhcs/fun/practice.pdf
Nevada Yes, designated agent law. New laws in Nevada as of 2003 give citizens the right to designate an agent for burial or cremation. See Chapter 451 of the Nevada Revised Statutes for details.
New Hampshire There is a statutory duty to comply with the written wishes of the deceased if there are sufficient funds.
New Jersey New Jersey adopted a Designated Agent law in 2004.  Beware – you must make your wishes known in a will, so make that will available to your family and friends, not locked away in a safe deposit box.  http://www.judiciary.state.nj.us/legis/2005c324.pdf
New Mexico There is a statutory duty to comply with the written wishes of the deceased. Any adult may authorize his/her own cremation prior to death.
New York
North Carolina An irrevocable preneed arrangement may not be altered. In 2003, North Carolina added a designated agent provision in statute Chapter 90. To find it, click here and scroll down to look for §90-210.124 — Authorizing agent, §90-210.125 — Authorization to cremate, §90-210.126 — Preneed cremation arrangements.
North Dakota
Ohio Any person may authorize his/her own cremation. A spouse may over-ride this wish.
Oklahoma
Oregon Yes, personal preference law.
Pennsylvania Unclear
Rhode Island
South Carolina Yes, personal preference law. A person may authorize his/her own cremation in a Cremation Authorization Form — see South Carolina Code of Laws, Section 32-8-315 at the State Legislature Web site . Section 32-8-320 allows you to name any person you like (it does not have to be your next of kin) to carry out your wishes for cremation. You must do so in a ” will or other verified and attested document.”

OUR ADVICE — Do NOT use a will to assign this power to someone.  Why? Because the will usually isn’t read until after your body is disposed of.  Instead, draw up a short, dated document stating that you give such-and-such person the sole right to make arrangements for your disposition, as allowed by SC Code 32-8-30.  Date the document, and have it notarized.  Make sure your survivors have a copy.

South Dakota Yes, personal preference law, found in Title 34, Chapter 26, Section 1 of the South Dakota statutes.
Tennessee If pending legislation passes the Senate, one will be able to name a designated agent for body disposition.
Texas There is a statutory duty to honor the wishes of the deceased. You may also name an agent to control disposition of remains. Information about this can be found in Texas Health and Safety Code 711.02, which contains a form to appoint an agent.
Utah A designated agent may carry out the wishes of the deceased. A person may (burial or cremation) in an approved document.
Vermont Effective September 1, 2005, Vermont has added the right to specify the disposition of one’s own body, and the right to designate an agent to make decisions about bodily dispostion, to the state advance medical directives law. What a sensible approach! See Title 18, Chapter 111, of the Vermont Statutes at the Vermont Legislature’s Web site.
Virginia Yes, a person may designate an agent to arrange for the disposition of his/her body. See §54.1-2825. There is a statutory duty to comply with the written wishes of the deceased.
Washington There is a statutory duty to comply with the written wishes of the deceased. A preneed agreement may not be substantially altered by survivors. You can find the right to direct your own disposition in the Revised Code of Washington, 68.50.160, here.

2 thoughts on “Funeral agent preference laws

  1. charles campbell

    please tell me the source of your statement about mississippi in 2004. My father-in law died today and has a prepaid cremation arrangement but the funeral home says every one of the six children who are scattered all over the U.S must sign the form permitting it and fax it to the funeral home. If you can give me a legal citation it would save enormous amounts of trouble.

    Reply

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