As a probate litigation attorney, I have seen families argue over a lot of things after a probate estate is opened: who will get Aunt Millie’s Hummel Doll Collection; who will inherit Grandpa Bob’s hunting rifle; or who has the authority to go through the house and divvy up the photo albums. Recently, however, I have begun receiving calls from frantic family members wondering how to get their loved one’s body released from the morgue, get a plan put together for disposition of the remains, who pays for the service, and whether certain family members can be excluded from attending the service. I received three such calls over the last few months. This problem appears to become increasingly common.
In Missouri, the Right of Sepulcher is codified by statute at RSMo. 194.119. The statute sets forth which relatives – in order – have the right to direct the disposition of the decedent’s body:
1. The decedent’s duly appointed “attorney-in-fact” via a durable power of attorney document (usually a durable power of attorney for healthcare decisions)
2. for decedents who were in the military at the time of death, the person appointed to dispose of decedent’s remains pursuant to a United States Department of Defense Form 93
3. the surviving spouse of the decedent
4. any of the adult surviving children of the decedent
5. surviving parent
6. surviving siblings
7. nearest living relative by blood
8. if no next of kin, then someone willing to assume the financial obligation for disposition of the body
and if all else fails
9. the county coroner
Kansas has a similar statute to Missouris, codified at K.S.A. 65-1734, however, the priority of those entitled to direct the disposition of the decedent’s body is slightly different than in Missouri:
1. duly appointed attorney-in-fact or agent for healthcare decisions
2. surviving spouse
3. surviving adult children
4. surviving parents of the deceased
5. closest living relative
6. guardian of the decedent
7. personal representative of the decedent
8. county coroner
While durable power of attorney documents expire upon the death of the principal (the person who signed the document) the designation of the attorney-in-fact to make decisions regarding final disposition of the body is allowed. If the durable power of attorney documents cannot be located upon the decedent’s death, then the above list sets forth those who are allowed to make the decision by order or priority.
If, for example, someone with a superior right cannot be located or refuses to accept financial responsibility for disposition of the body, then someone else down the list may serve notice upon the person with a superior right. If the person with the superior right refuses to exercise that right within 48 hours, the person with the inferior right may take proof of the same to the facility holding the body in an attempt to procure the body and finalize arrangements. Someone with a superior right can also sign a waiver, allowing another to exercise the right of sepulcher in their stead. For example, if decedent was married at the time of death but was in the middle of a divorce that had not been finalized and was estranged from the surviving spouse, the decedent’s children may attempt to get a waiver of the spouse’s right of sepulcher so that they may accept financial responsibility for final disposition.
Additional problems can ensue when there are people in the same class who disagree on how the remains should be disposed of. For example, if decedent was not married at the time of death, but have three children who cannot agree as to whether the decedent should be buried or cremated, then a probate estate will likely have to be opened and a judge will settle the dispute.
Ultimately, to avoid confusion, disputes, and costly litigation regarding final disposition of the decedent’s remains, a durable power of attorney should be executed by the decedent prior to death clearly setting forth decedent’s wishes and appointing a trusted agent to carry out those wishes. The appointed agent should have a copy of the document, and the original should be kept in a place where it can be easily located in the event it is needed.