How to Document Your Funeral Plans
With information about every state!
In this week’s episode of Death, et seq., I try to demystify four kinds of documents used in planning for periods of incapacity or end of life planning:
The durable power of attorney;
The health care power of attorney;
The advance directive or living will; and
Funeral planning documents.
I’ll also be presenting a free webinar for the Green Burial Council on Wednesday, April 29th (and available thereafter on YouTube) on the topic of “Funeral Pre-Planning: Documenting Your Wishes for a Natural Burial.”
So it seems appropriate to provide a valuable resource here: a short guide to funeral planning documents and a state-by-state guide on how to document your wishes in the states that allow it.
In the United States there is a common law rule known as the “right of sepulcher.” The right of sepulcher belongs to a person or a group of people and gives them the right to:
control the remains of a deceased individual; and
determine the place and manner of the disposition of such remains.
Nearly every state has a statute that sets out who holds the right of sepulcher. The states take essentially the same approach, with a few tweaks here and there. The first priority belongs to the surviving spouse. If there is no surviving spouse, then adult children. If there is no spouse and no adult children, then the parents of the deceased. If no spouse, children, or parents, we go to siblings, then other “blood” kin like grandparents, nieces and nephews, aunts and uncles, cousins, etc.
There are, of course, many complicated family situations and many individuals don’t have close blood kin. Forty-seven states allow an individual to execute a document designing an individual as their agent to hold the right of sepulcher instead of the default person(s) named in the statute. I call these “designated agent” statutes.
So, for example, imagine an elderly woman’s husband has dementia. She may wish to execute a document appointing one of her children or a friend to hold the right of sepulcher and make funeral planning decisions for her.
Forty-four states allow an individual to leave binding instructions regarding the disposition of their own remains—for example to indicate that they wish for green burial. I call these “personal preference” statutes.
The states vary widely in terms of how to name a “designated agent” to hold the right of sepulcher or how to document personal preferences regarding a funeral and disposition.
The table below sets out the kinds of documents can be used to appoint a designated agent or memorialize personal preferences. It also includes the statute in each state so that you can look at the exact language.