The Right to Control Funeral and Burial Arrangements (Part 2)

       In my post last week, I explained how my client Joe can insure that his burial wishes are carried out.  One option is to set up a prepaid burial plan.  He can set aside money in trust to cover the burial arrangement he has chosen while alive.  A second option is to designate a funeral agent in Joe’s will as permitted under New Jersey law.  It can be anyone including the executor of his will.  In Joe’s case he wants his longtime companion, Betty to be his funeral agent.

       But what happens if no funeral agent has been designated in a will and no prepaid burial has been established?  In that case, New Jersey law states that the first right to control funeral and disposition of the body falls to the surviving spouse or civil union or domestic partner.  However, if there is a restraining order against that spouse or partner or that spouse or partner is charged with intentionally killing the deceased spouse or partner then the right passes to the next in line.

       This means that in the case of a second marriage – unless one of the above exceptions applies – if there is a dispute between the deceased person’s spouse and the children from a first marriage, the spouse will have the right to make funeral and burial decisions.  If that is not the desired outcome, then one of the options I discussed last week should be employed.

       The next class of people who have the right to make funeral and burial decisions are a majority of the deceased person’s children.  If there are no children, then the decision falls to surviving parent(s) and then a majority of siblings.  If there are no siblings, then the nearest relative according to degree of consanguinity would be next.  This would be nieces and nephews or beyond that first cousins.

       Finally, if there are no known living relatives then a cemetery may rely on written authorization of any other person acting on behalf of the deceased person.  The law does not, however, define “written authorization”.

       For most people, it is not difficult to determine who can and will make decisions but increasingly we are seeing elderly clients who have no one close to them.  They may have distant relatives that they have not been in touch with for many years.  Practically speaking, there would be no way of identifying these other people quickly or at all.  In that case naming a funeral agent in your will or making your own arrangements while alive is the best way to solve this problem.