Who Has the Legal Right to Make Funeral Decisions?

Who Has the Legal Right to Make Funeral Decisions?If a loved one dies and there is contention within the family, it can be difficult for everyone to agree on the right decisions to make regarding funeral planning and other burial decisions. While many families are able to work this sort of situation out for themselves, some struggle with finding a way to stay true to the wishes of the deceased and adhering to their own individual views on death.

In extreme cases, it may come down to legalities. Unfortunately, there is no national standard that oversees this issue, and every state has their own regulations regarding the rights of family members, spouses, and partners when it comes to funeral arrangements. In order to understand your specific rights, you will need to contact an estate attorney in your state or, if you are planning ahead, someone who can help you draft legal documents regarding burial rights (in which you specify an agent).

Funeral Rights

In almost all states, family members and spouses are the ones with the most rights. A husband or wife has more rights than a parent or child, and an adult child has more rights than a parent. In order of descending rights, the list generally goes like this:

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  • An Agent (as directed by your healthcare directive or legal documents)
  • Spouse (in some states, this includes a domestic partner, but leaving this unclear can lead to messy squabbles—especially in same-sex partnerships that some family members might disapprove of)
  • Adult Children
  • Parents
  • Adult Siblings
  • Other Adult Relatives

What’s interesting about all of this is that even with a legal document and this outline, not everything is written in stone.

In fact, there are some states that allow survivors to alter the funeral plans. For example, Alaska and North Dakota have no formal rules regarding the legality of written funeral plans, and your next of kin may be able to act according to their own plan. Other states might allow your wishes to be overturned in favor of cremation due to the lower costs and reduced burden on the environment.

Your chosen agent or family member might also be allowed to stray from your written wishes if they are financially burdensome or impractical on a large-scale level (unless you’ve made advanced financial arrangements and all of it is paid for).

Unless you live in a state that recognizes and enforces legally-binding documents, the best way to ensure that your wishes are carried out is to pay for a funeral pre-plan or to have serious and lengthy discussions with your family to ensure that everyone is clear on what you wish. Even in these cases, it’s a good idea to go ahead and draft a written funeral plan with your lawyer and to place it in a trusted family member’s safekeeping, since states are continually updating their laws to give more rights to the individual.

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