The model will provisions below were originally published in Murphy’s Will Clauses: Annotations and Forms with Tax Effects, available through the Lexis Bookstore
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Model Will Provisions Pertaining to Cremation
The ever-rising cost of funerals and burial – including cemetery plot or mausoleum niche, embalming, casket, internment, etc. – has made cremation a much more appealing option to millions of Americans.
This increase in popularity is also due, in part, to the acceptance by the Roman Catholic Church of cremation as a burial option for adherents of that faith (not long ago, cremation was viewed by Catholics as a denial of their belief in the bodily resurrection of believers at the end of time). Whatever the impetus, more and more clients are expressing an interest in this mode of burial and want their wishes captured in their wills.
Disposition of the ashes: Incidentally, many clergy advise strongly that the ashes either be interred or properly distributed, for example, through a burial at sea or in some other appropriate venue. Giving the ashes to a family member(s) can raise all sorts of problems in the future when the recipient dies, moves, etc. For example, if an elderly widow keeps the ashes of her husband, what will happen to these remains at her own death if the couple has no surviving children? Even if they do, suppose the children (or their spouses) do not want to take possession of the ashes.
In sum, human remains deserve to be accorded due respect in perpetuity. As an estates lawyer, you should bring these issues to the attention of a client who wishes that the ashes be given to a family member(s).
The following will clauses can be added to your own collection as further options where a client expresses a desire to be cremated at death.
Clause 1 – Ashes to be disposed of in an appropriate manner chosen by executor
I hereby direct that my body be cremated and that my ashes be disposed of in such manner as my executor or executors shall, in their discretion, deem appropriate.
Clause 2 – Ashes to be interred at a cemetery
Subject to the desires of my __________ [husband, wife, domestic partner], if [s]he survives me, it is my wish that my body be cremated, that there be no lavish or large funeral or burial services for me, and that there be no service to unveil any monument that may be erected over my burial site.
Clause 3 – Ashes to be disposed of in an appropriate manner chosen by spouse
I hereby direct that my body be cremated and that my ashes be disposed of as my __________ [husband, wife, domestic partner], if [s]he survives me, shall deem fitting, but if [s]he does not survive me, then as __________ deems fitting. I request that my funeral service be private, simple and without ostentation.
Clause 4 – Funeral guidelines; ashes to be interred in a mausoleum
It is my will, and I so direct, that my remains shall be cremated and that my ashes shall be placed in an urn, which shall be inscribed with my name and the dates of my birth and death. I further desire that a funeral service be conducted at __________ [name of funeral home, church, synagogue, mosque, or other place], located at _________, with the urn and ashes present. If possible, I would like the funeral service to be performed by __________, assuming s/he is available. Following the service, I direct that the urn shall be placed in the mausoleum of my family in the cemetery of __________, located at __________.
I have left a memorandum, in writing, with my executor stating that I desire my body to be cremated. I now direct my executor or his/her successor, in order to defray the expenses of such cremation, to expend a sum not to exceed $__________.
Clause 6 – Ashes to be scattered in a cemetery
I direct that my body be prepared for cremation at as little expense as possible, then cremated and the ashes placed in a paper box and, during the summer of or immediately following my death, taken, without any unnecessary preparation or trouble, to __________ Cemetery, and scattered in that cemetery in such a way as to allow the ashes to fall on our family burial lot where __________ [for example, “my father, mother, sister and brother are buried”], and on any other lots where relatives of mine are buried. I do not desire to have any marker erected for me. After my ashes have been scattered as above directed, I desire to have the paper box in which they are brought to the cemetery covered with kerosene and burned.
Clause 7 – Ashes to be scattered at sea
I direct that my body be prepared for cremation at as little expense as possible, then cremated and the ashes placed in a paper box. At a convenient time during the summer following my death, I request that __________ [insert, for example: “my eldest son, John” or “my executor” or “my partner, Barbara”] take my ashes to __________ [for example, “Martha’s Vineyard, MA” or “the beach at San Monica, CA.”] There, I request __________ to hire a boat and sail out into open waters. The boat having reached a suitable distance from shore, I request __________ to scatter all of my ashes into the sea. After my ashes have been scattered, I desire to have the paper box set afire and the remnants tossed into the sea.
Clause 8 – Ashes to be scattered on a mountaintop or similar locale
I direct that my body be prepared for cremation at as little expense as possible, then cremated and the ashes placed in a paper box. At a convenient time during the summer following my death, I request that __________ [insert, for example: “my eldest son, John” or “my executor” or “my partner, Barbara”] take my ashes to __________ [for example, “Grand Canyon National Park” or “the Adirondacks, in New York State.”] There, I request __________ to scatter my ashes in a suitable place, such as __________ [for example, a hilltop overlooking the mountains in the distance]. After my ashes have been scattered as above directed, I desire to have the paper box set afire and its ashes scattered at or near the spot where my ashes were scattered.