Will Your Family Honor Your Funeral Instructions?

Will Your Family Honor Your Funeral Instructions?
From the September 2006 Riker Danzig <I>Tax and Trusts & Estates UPDATE</i>.

Funeral and burial instructions - whether written or otherwise conveyed - suffer from an inherent problem: you will not be around to ensure that the instructions are followed. And while the same point can be made about wills and other posthumous arrangements, the incentive for policing (and the penalties for ignoring) those other arrangements is far greater. However, New Jersey law does at least provide a framework for giving - and respecting - funeral instructions.

Wills are often considered bad places to set down funeral instructions, since your will is not usually consulted in the crucial days immediately following death. However, N.J.S.A 3B:10-21.1 provides as follows:

"Prior to probate, a decedent's appointment of a person in a will to control the funeral and disposition of human remains may be carried out in accordance with section 22 of P.L.2003, c.261 (C.45:27-22). If known to them, a person named executor in a will shall notify such a person of their appointment and advise them of what financial means are available to carry out the funeral and disposition arrangements."

Thus, your will is the only instrument that would have legal effect in appointing a particular person (who may or may not be your executor) to control your funeral and burial arrangements - even before probate of the will itself.

This provision is echoed in the statutes that instruct funeral homes and cemeteries. And those statutes (contained in N.J.S.A. 45:27-22) go even further in setting out a hierarchy of persons authorized to give instructions in the absence of a specific appointment in the will:

"a. If a decedent in a will, as defined in N.J.S.3B:1-2, appoints a person to control the funeral and disposition of the human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed. A person so appointed shall not have to be the executor of the will. The funeral and disposition may occur prior to probate of the will, in accordance with section 40 of P.L.2003, c. 261 (C.3B:10-21.1). If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other directions have been given by a court of competent jurisdiction:
(1) The surviving spouse of the decedent or the surviving domestic partner.

(2) A majority of the surviving adult children of the decedent.

(3) The surviving parent or parents of the decedent.

(4) A majority of the brothers and sisters of the decedent.

(5) Other next of kin of the decedent according to the degree of consanguinity.

(6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent."

In short, absent the appointment by will of a person authorized to give funeral instructions, the decedent's surviving spouse (or, pursuant to recent legislation, the decedent's surviving domestic partner) is authorized by law to give those instructions, followed by a hierarchy of specified blood relatives and finally, if none, any other person acting for the decedent. Only a court order would be able to countermand the instructions given by the person authorized by this statute.

Where there is a surviving spouse from a first and only marriage, controversy over funeral instructions is generally rare. However, other family situations might not be so amicable. For example, in the case of second (or later) marriages where the second spouse and the children from a previous marriage do not get along, without the appointment by will of a person authorized to control funeral and burial arrangements, the surviving spouse would have sole control of funeral and burial plans, and those children from the prior marriage would have to (quickly) apply to court in order to stop the funeral home or cemetery from following the spouse's orders (and there is no assurance that the court would grant any relief).

If you think your family might disagree about your funeral arrangements after you are gone, consider these steps: (i) name a trusted individual in your will to control your funeral arrangements (keeping in mind that this person will have complete control, even to the point of ignoring any instructions you gave while you were alive), (ii) make sure that individual knows that he or she has that duty and accepts it, (iii) make sure that family members (or other trusted individuals) are aware that such a designation has been made (i.e., so that your will is actually consulted shortly after your death), and (iv) leave your designated individual with written instructions that set out your desires in some detail - a crucial step that will help the designated instruction-giver know how you would like your funeral and burial handled.