By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.
As an estate planning and probate attorney, I often encounter the following question… What happens to my remains when I die? Usually, this question causes little or no concern to me as the majority of families agree on funeral, burial, and/or cremation plans for their loved one and will honor the wishes provided by the deceased person for the final resting place. However, occasionally there is a family dispute over what the deceased person intended for their final resting place or which person should get possession of the deceased person’s remains.
A person generally devises their property at death by using a Last Will and Testament or a Revocable Living Trust. Administering a probate or a trust disposes of the deceased person’s property. However, a deceased person’s bodily remains are not considered property under Florida law and bodily remains cannot be disposed by Last Will and Testament. Often times, a person will express their intent to their family and friends regarding their wishes for burial or cremation and sometimes that intent is written down or included in a Last Will and Testament. An intent shown in a Last Will and Testament (or other writing) for disposition of a person’s bodily remains generally should be honored. Any dispute over a deceased person’s bodily remains shall be resolved by a court of competent jurisdiction (often the county where the deceased person resided at time of death).
The person in charge of coordinating the funeral, burial, or cremation plans of a deceased person is the legally authorized person under Florida law. There is a priority ranking system to determine which person has the authority to plan funeral, burial, and cremation services and the order goes as follows:
1. Deceased person’s written direction
2. A person appointed in written military directive
3. The surviving spouse (except in limited circumstances such as domestic violence)
4. An adult child
5. Deceased person’s parent
6. An adult sibling
7. An adult grandchild
8. A grandparent
9. Other relative
Therefore, if a deceased person has provided written instructions regarding funeral, burial, or cremation, those wishes should be honored by the family. If no instructions were left behind, you would follow the priority rankings above to see who the legally authorized person should be to make decisions for the deceased person’s bodily remains. If the person with highest priority chooses not to help coordinate the arrangements, then the next person listed in the priority rankings will often make those decisions. The funeral establishment is required to rely upon the authorization of any one legally authorized person of that class if the person represents that she or he is not aware of any objection to the disposition of the deceased person’s bodily remains by others in the same class of the person making the representation or of any person in a higher priority class.
Additionally, the legally authorized person is not required to use their own resources to personally pay for the deceased person’s funeral, burial, or cremation and often times the deceased person will have prepaid for the arrangements during their lifetime. If there were no prepaid arrangements made by the deceased person, the family often decides to pay for the costs out of their own resources.
Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to firstname.lastname@example.org.