A More Personal Element of Estate Planning: The Disposition of a Decedent’s Remains

               In the field of estate planning and estate administration, we deal with the fact of death on a regular basis. We draft plans that anticipate what will happen at death, and when death occurs, we know what immediate tasks are necessary: from cancelling credit cards to securing assets to notifying banks, and so forth.  We are experts in the disposition of property.  But sometimes other questions arise immediately upon a death. Our firm faced one such situation recently when questions arose over who controlled the disposition of a decedent’s remains. Although this particular situation was unique, it illustrates how careful lifetime planning can help ease a family through a very difficult period.   
            In our case, “Paul” died suddenly and tragically in an automobile accident. At the time of his death Paul was in his mid-40’s and had been separated from his wife for many years. He had moved to a neighboring state, but made frequent trips to California to see his teenage children. Shortly before his death Paul had engaged an attorney to proceed with a divorce. (Drafts of the dissolution papers were found among Paul’s effects.) 
            The accident occurred on a Friday night in a remote part of California as Paul was returning home after visiting his children. Paul’s parents called us on Saturday. By then Paul’s body had been released by the coroner to a local funeral home in the county where the accident had occurred. Naturally all of Paul’s relatives were shocked at the terrible news of Paul’s death, but there was additional strain due to a long history of discord between Paul’s parents and his estranged wife. By Saturday, the estranged wife had already told the funeral home that she wanted Paul’s remains cremated. Paul’s parents, however, wanted Paul to be buried in the family plot in their home state. The parents thought Paul might have left instructions to this effect, but of course they could not quickly access his home to look through his papers. There was a very real possibility that the funeral home would cremate Paul’s remains on Monday, acting at the direction of his estranged wife.
            We were faced with the need to appear in court in this remote location on Monday morning, on an ex parte basis, to seek an order restraining the funeral home from proceeding with the cremation, thereby allowing Paul’s parents time to search among his personal effects for any documentation of his wishes. Why was this necessary? It was necessary because state law sets forth the persons who have authority to make decisions regarding the disposition of human remains. In California the order of priority is: (1) an agent under a power of attorney for health care who has been specifically granted this authority in the power, (2) the decedent’s spouse, (3) the decedent’s adult children, (4) the decedent’s parents, (5) the decedent’s adult siblings, (6) the next closest adult relatives by degree of kinship, and (7) the county public administrator. Cal. Health & Safety Code Section 7100(a). Had Paul executed a power or attorney for health care and designated an agent to make these decisions, the agent would have had legal authority to step in. Had Paul’s divorce been finalized before his death, his wife would have lost her statutory standing to make the decision. Had Paul’s children attained age 18, they would have assumed some authority to make the decision. But none of those facts existed.
            In California, as in many states, a power of attorney for health care (or advance health care directive, or similar document) can be used to state the principal’s wishes regarding the disposition of his or her remains. Just as importantly — as this case illustrates — the document can be used to grant authority to an agent to make all of these decisions on behalf of the principal/decedent. Cal. Probate Code Section 4683(b)(3). We don’t know what Paul wanted, but it is likely that he did not want his estranged wife to control the disposition of his remains, particularly if her choice was motivated (as our clients believed) by a history of animosity toward Paul’s parents. Had Paul designated an agent other than his estranged wife in a power of attorney for health care, the funeral home would have been bound by law to follow the directions of Paul’s agent, and not the directions of his estranged wife. This doesn’t guarantee there won’t be conflict, but it can clarify matters if conflicts arise.
            We have encountered similar situations with other clients, when family members who otherwise would have statutory authority to control the disposition of the client’s remains are not those whom the client wishes to have this power. For example, a spouse may be incapacitated due to Alzheimer’s disease, or children may be estranged. The ability to designate a friend or relative who is familiar with one’s wishes, and who can be relied upon to carry out those wishes, can be beneficial in these cases. In other circumstances, a client may have no close relatives at all. Here, the designation of a friend can help ensure that disposition decisions are carried out quickly and in accordance with the decedent’s wishes, without involving remote relatives or the public administrator, and without lengthy delays. (Of course, it is important to make sure copies of any designation are shared with the person who is designated, or readily accessible in the event of an unexpected death.)
            In our case, no documents were ever found which shed any light on Paul’s wishes. Over the course of a few, very difficult days, Paul’s parents and his estranged wife reached an agreement reminiscent of Solomon’s judgment. Paul’s remains were cremated, and his ashes were divided between his wife and parents. Some were scattered at sea by Paul’s wife, and the rest were buried in the parents’ family burial plot. Neither the wife nor the parents were happy with the result. Unfortunately, the longer-lasting toll may have been on Paul’s children, who experienced conflict instead of support and comfort in the days following their father’s death.
            A sudden death is always difficult, but the shock and pain of that occurrence was multiplied exponentially by the need to search for a written expression of Paul’s wishes, the need to hire attorneys, and the need to — essentially — negotiate for Paul’s remains. The bitterness of the events may also impact the ongoing relationship between Paul’s parents and Paul’s children. While this case presented unique facts, the family circumstances were not terribly unusual. Paul’s case suggests that it is very important not only to counsel clients on the importance of health care powers and directives, but also to make clear one’s wishes, in the many states where this is permitted, about who is authorized to make decisions regarding the disposition of one’s remains.   
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Morrison & Foerster’s Trusts and Estates group provides sophisticated planning and administration services to a broad variety of clients. If you would like additional information or assistance, please contact Patrick McCabe at (415) 268-6296 or PMcCabe@mofo.com.
© Copyright 2009 Morrison & Foerster LLP.  The views expressed in this article are those of the authors only, are intended to be general in nature, and are not attributable to Morrison & Foerster LLP or any of its clients.  The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

This article is published with permission of Morrison & Foerster LLP.  Further duplication without the permission of Morrison & Foerster LLP is prohibited.  All rights reserved.  The views expressed in this article are those of the authors only, are intended to be general in nature, and are not attributable to Morrison & Foerster LLP or any of its clients.  The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.