Planning for the Disposition of Decedent’s Remains

            In 2006, the legislature enacted changes to the Public Health Law designed to minimize family conflicts concerning the disposition of the decedent’s remains. (see, Laws of 2006, chapter 76). Where a client anticipates possible problems with her burial, her estate planner can resolve these concerns by the execution of appropriate statutory approved documents (see, Fish, To Avoid Burial Disputes, NYLJ, 6/7/06, 3 col. 1). Public Health Law Section 4201 permits the appointment in writing of an agent to make decisions regarding the disposition of the decedent’s remains and allows the decedent to indicate special directions or limitations on her wishes as well as any prefunded burial agreements. The statute further permits a decedent to indicate her agent and directions and limitations for burial in a will executed pursuant to New York Law. However, the form is preferable because, as a practical matter, it is rare for the will to be probated prior to disposition of the remains. Section 4201 gives the highest priority to the person designated in such written instrument over the surviving spouse, domestic partner, or other relatives, friends and fiduciaries.

 

            Funeral Directors may encourage clients to use the form when they prearrange for their burial. Counsel should be alert to inform funeral directors that if they follow the decedent’s directive in good faith, they shall not be subject to any civil liability. Public Health Law 4201, §§ 6 and 7.

 

            Where the statutory form is not used, there is a ranking of family members and others in which control of the remains is set forth.

 

            Disputes about decedent’s remains typically occur between divorced parents concerning their children’s remains, between same – sex partners and family members, between separated and divorced spouses and family members, and between second spouses and family members of the first spouse. The statute in order to be effective must be widely utilized by planning attorneys for their clients. Where no written instrument controlling the disposition of a decedent’s remains is executed, litigation over this issue continues to occur. (see e.g. Maurer v. Thibeault, 20 Misc. 3d 631 (2008)). Thus the Statutory Form should be as common to the estate planner as the durable power of attorney and the health care proxy.