A Peaceful Body: Planning for the Disposition of One’s Remains Upon Death

BROOKLYN, NEW YORK, APRIL 21, 2013.  The question of what will happen to one’s remains after death is a difficult one to contemplate. No one likes to think of death, especially their own or that of a loved one. However, with an increase in couples choosing various arrangements over traditional marriage, post-mortem planning has become more challenging. Additionally, as some publicized court cases have shown, conflicts and disputes between estranged family members can easily develop.

Of note is the case involving the late baseball legend, Ted Williams. After his death from cardiac arrest in 2002, Williams’ children from a second marriage quickly had their father’s body frozen by cryostasis. They claimed that doing so was in accordance with Williams’ wishes and that he had memorialized his desires on the back of a napkin. Williams’ oldest daughter went to court to dispute the validity of the ‘document.’ She claimed that her siblings had had their father frozen with intentions of extracting and selling his DNA, and that her desire was simply to honor her father’s wishes as stated in his 1996 will. Indeed many of Williams’ friends and family claimed that they distinctly remembered him saying that he wanted to be cremated and have his ashes spread across the Florida Keys in accordance with his will. After many months in court, the daughter agreed to drop the lawsuit due to financial difficulties. Williams’ body remains frozen at Alcor Life Extension Foundation in Scottsdale, Arizona.

Another case that made the headlines involved a dispute between two parents over where their son would be buried. Staff Sergeant Jason Hendrix’ parents had divorced when he was a child, and his father was awarded custody. Hendrix had grown up in California with his mother, but moved to Oklahoma to live with his father. Sadly, Sgt. Hendrix was killed in battle during the Iraq war. He was unmarried, had no children and left no will. In accordance with Pentagon policy—which states that custody is granted to the eldest next of kin, custody of his remains went to his father, who was three years the mother’s senior. His mother argued that before his death, Hendrix had expressed a desire to be buried in California. Citing the fact that Hendrix had possessed an Oklahoma driver’s license, that Oklahoma was his state of legal residence and that there was evidence that he had planned to live in Oklahoma upon his return from the Army, the court ruled in favor of his father stating that Hendrix was to remain buried in Oklahoma, where his father had buried him.

These cases underscore the need for an individual to prepare a document that will aid in avoiding such conflicts. In the state of New York, the Appointment of Agent to Control Disposition of Remains Form is a document that an individual can use to appoint someone who will be responsible for the final disposition of his/her bodily remains after death. The document allows the designated individual or “agent”, to have priority with regards to the disposition of one’s remains regardless of whether they are next of kin or not. This is especially important for individuals who are single or members of nontraditional families.

According to New York Public Health Law section 4201, there is a designated hierarchy of individuals who have the right to control the disposition of a decedent’s remains. They are as follows:

(i) the person designated in a written instrument;

(ii) the decedent’s surviving spouse;

(ii-a) the decedent’s surviving domestic partner;

(iii) any of the decedent’s surviving children eighteen years of age or older;

(iv) either of the decedent’s surviving parents;

(v) any of the decedent’s surviving siblings eighteen years of age or Article 17-a of the Surrogate’s Court Procedure Act (SCPA) or Article 81 of the Mental Hygiene Law;

(vii) any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the Estates, Powers and Trusts Law:

a) Grandchildren;

b) Great-grandchildren;

c) Nieces and nephews;

d) Grand-nieces and grand-nephews;

e) Grandparents;

f) Aunts and uncles;

g) First cousins;

h) Great-grandchildren of grandparents; and

i) Second cousins—with the person closest in relationship having the highest priority;

(viii) a duly appointed fiduciary of the estate of the decedent;

(ix) a close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one  higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section; or

(x) a chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the SCPA or any other person acting  on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section.

Public Health Law section 4201 provides for individuals to appoint an agent through an Appointment of Agent to Control Disposition of Remains Form. The form provides a section where one may appoint an agent. Also, one may set forth special directions limiting the agent’s powers or instructions to be followed in the disposition of remains. The form allows an individual to appoint a successor agent and a successor to the successor. In order for the form to be valid, it must be signed by the agent and witnessed by two individuals, who must also sign it.

The Appointment of Agent to Control Disposition of Remains Form may provide clarity and peace to families with complex emotional dynamics. In addition, preparing this form may help estates and family members avoid undertaking costly legal disputes for a small fraction of their cost.

Disclaimer: The information presented in this blog post should not be construed to be formal legal advice on any subject matter. Always seek the advice of a qualified lawyer with any questions you may have regarding a legal situation. Reproduction, distribution, republication, and/or retransmission of text contained within the AntarLaw.com website are prohibited unless the prior written permission of The Law Office of Antar P. Jones, PLLC, has been obtained.