Burial, Cremation, or Donation. Who Decides what to do with my Remains?
You should. But not everyone makes their wishes known or legally enforceably.
Unfortunately, it is not uncommon for a dispute to arise between family members over whether a loved one should be buried or cremated; sometimes the issue of anatomical gifts (organ, tissue, and vascularized composite allografts) and donations can also arise.
Therefore, if you do not make your wishes know in your estate plan, the matter must then be decided by members of your family.
A Surviving Spouse or Next of Kin will be required to decide if you do not.
No matter what your desire, in Pennsylvania, unless the decedent (the person who died) took specific steps to make their wishes known, and legally enforceable, either a surviving spouse or next of kin will make the decision for them; a decision which could even become litigious if everyone does not agree – and possibly result in a situation which is far from you wanted.
For example, a decedent with two children fails to articulate in his estate plan that he wishes to be cremated. One of the children believe the decedent wished to be buried the other claims he wished to be cremated. Although the discussion is wide ranging and long, the two children still cannot agree and hold fast to their respective positions as to the decedent’s remains.
Section 305 of the Probate, Estates, and Fiduciaries (PEF) Code states “if two persons with equal standing as next of kin disagree on disposition of the decedent’s remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.”
So what can you do to ensure your wishes are carried out?
To remove the risk of leaving the disposition of your remains up for family debate, or, in the event they cannot agree, the court – a person has several options to ensure their wishes as to their final resting place are carried out:
- Include a provision in your Last Will & Testament; or
- Include a provision in your Living Will;
- Include a provision in your Healthcare Power of Attorney;
- Include a provision in your Power of Attorney; or
- Execute an agreement specifically authorizing an anatomical gift of your remains
In light of this, be sure to discuss the issue of your remains with your estate attorney and account for this provision in your estate planning documents.
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