Who Decides What Happens To My Remains Anyway? (March 2014)
“Thou know’st ’tis common; all that lives must die, Passing through nature to eternity.”
-William Shakespeare (Hamlet)
Death. This is a difficult topic to think about. Most of us spend most of our lives enjoying work, hobbies, friends and family. We engage in diversions to avoid thinking about this inevitability. And yet, this is a bridge that we all must cross someday. Some of us are meticulous planners and dictate exactly what should happen upon our passing, such as where to hold a funeral service, what type of food to serve, what pictures to display, and even what type of music will be played. While most of estate planning is usually focused on what happens to your financial estate after you pass away, today I want to discuss what happens to your physical estate—your body and its final honors as it is laid to rest.
One of the biggest decisions is whether to be buried or cremated. Although there is no right or wrong answer to this question, there are many factors that can influence your decision on this matter. Religious beliefs, financial resources, ecological concerns, and family traditions are all important considerations. However, once you’ve decided how to dispose of your remains and what type of memorial service you would like to have held on your behalf, how do you make sure that your wishes are carried out after you are gone?
In the past, you could indicate your wishes as to the treatment of your remains in an Advanced Health Care Directive or in a Last Will and Testament. However, those documents were not designed primarily for that purpose and there wasn’t a good system in place to ensure that your wishes would be carried out. The Advanced Health Care Directive is primarily a document that lets you designate an agent to make health care decisions for you in the event of your incapacity and it also lets you make your end of life decisions—such as whether or not to pull the plug or receive tube-feeding. The Last Will and Testament is primarily for the purpose of naming your Personal Representative (formerly known as an Executor) and designating who should inherit your property or become the guardians of your minor children. In addition, there wasn’t a clear rule about who has the right to ultimately decide about your body’s fate.
Last year, the Hawaii State Legislature passed a new law called the “Disposition of Remains Act.” According to the new law, a person over age 18 may specify the location, manner, and conditions of disposing of their remains in a Will, in a pre-need funeral contract, or in a written, signed, and notarized document. Under the law, these written directions take precedence over any other person’s wishes or directions—including your surviving spouse or children.
If you don’t specify how you want your remains to be disposed of, you can appoint someone to make those decisions for you in your Will or in a separate document that identifies who you are naming to fill that role. In the event that you don’t specify whom you would like to have authority to make decisions about your remains, the law gives priority to your surviving spouse, partner, or reciprocal beneficiary, if you were married, in a civil union, or in a reciprocal beneficiary relationship when you passed away. If not, the majority of your children would have the right to make such decisions. The law goes on to name your parents, and then your siblings if they happen to be surviving, and then more remote family members or other legal representatives.
An interesting point is that the law goes so far as to point out that if your named representative, or family member who has priority under the law, is charged with murder or manslaughter in connection with your death, then their right to decide about the disposition of your remains is forfeited.
This new law is especially helpful for the funeral homes who were often stuck in a situation where they had conflicting instructions from different family members and didn’t know who to listen to, or had to deal with the body of someone who had no close family members and didn’t have instructions at all as to what to do.
If you haven’t taken care of specifying how you would like your memory to be honored and what to do with you remains, you should see an expert estate planning specialist attorney right away to update or create your estate plan including what your wishes are regarding the disposition of your remains.
© OKURA & ASSOCIATES, 2014