Funeral Consumers Alliance

Personal Preference Laws for Body Disposition

In more than half the states, there is a statutory obligation for survivors to honor the written wishes of the deceased, to follow your personal preference. In a few states, your wishes may be over-turned in the case of cremation, however. Even if there is no personal preference law in your state (blank entry below), it is better to have your wishes in writing than not at all. Courts routinely support all but the most outrageous wishes.

Click "read more" below for a state-by-state breakdown of laws you can use to make sure your funeral wishes are carried out.

Perhaps the most useful laws are those permitting you to name a designated agent for body disposition. If you are estranged from next-of-kin or were never married to your significant other, the designated agent law allows you to name someone other than a legal spouse or relative to carry out your wishes. Or perhaps one of your children is a little more inclined to follow your wishes than the others.

Sometimes circumstances change, and it seems appropriate to change funeral plans, too. One woman's father lived so long that none of his friends were left to come to a viewing. A public viewing for one person--just for her--didn't make sense. Or perhaps you planned on body donation to a medical school in Idaho but die while on a trip to New York. Should your estate pay for shipping your body back to Idaho, or would you trust your agent to make appropriate alternative arrangements?

NOTE — almost all states honor the legal rights and documents of your home state, if death occurs while traveling. Our Before I Go, You Should Know funeral planning kit is designed just for this. The kit includes a fill-in-the-blanks booklet for all your funeral and memorial plans, state-specific paperwork such as your Living Will and Durable Power of Attorney for Health Care, and a directory of Funeral Consumers Alliance chapters nationwide. Before I Go keeps your paperwork in a recloseable pouch perfect for tucking in your suitcase! Bookstore > Before I Go

Arizona - Arizona now allows citizens to designate an agent to have the authority to make funeral and burial arrangements within the form for a durable healthcare power of attorney. Senate Bill 1023 introduced this change, but there is confusing and conflicting language that makes it unclear whether the person you designate to carry out your wishes has the highest authority, or whether a surviving spouse does:

• 36-831. Burial duties; notification requirements; failure to perform duty; definitions
  
  A. Except as provided pursuant to subsection H of this section, the duty of burying the body of or providing other funeral and disposition arrangements for a dead person devolves in the following order:
  
  1. If the dead person was married, on the surviving spouse. Unless:
  

  (a) The dead person was legally separated from the person's spouse.

  (b) A petition for divorce or for legal separation from the dead person's spouse was filed before the person's death and remains pending at the time of death.

  2. The person who is designated as having power of attorney for the decedent in the decedent's most recent durable power of attorney.

This seems to conflict with rights that already exist in Arizona law. The state has a personal preference law in Arizona Statute Title 32-1365.01 that gives you the right to authorize your own cremation or disposition in writing. The law clearly states that no one else's consent - not your spouse's, not your childrens' - is required. It seems likely lawmakers weren't aware of this conflict, which is unfortunate, since it may prove confusing for families and for funeral directors.

So What Should You Do?

Your right to authorize your own body disposition still exists in state law. We're fairly sure the courts would uphold a written document declaring your wishes, including a durable healthcare power of attorney that describes your wishes and names an agent to carry them out, even if that person is not your spouse. We've prepared a Durable Healthcare Power of Attorney form that includes a clear reference to your right under Arizona law to authorize your own disposition. Download your free copy (see attachment below).

Arkansas --Yes, if arrangements are made prior to death. In order to be sure your wish to be cremated after death is not overruled by your next of kin, you must sign a form indicating your wish and have it witnessed by two people. Apparently, cremation is still 'controversial' in Arkansas.

California --Yes, personal preference law, found in California Health and Safety Code 7100.1 California also has a designated agent law found in CHSC 7100. Search for both of these on the state legislature's web site.

Colorado--- Colorado has a personal preference and a designated agent law. Title 15-19-104 of the Colorado Statutes gives a decedent the right to make his own legally binding preferences known in a written document. Title 15-19-106 gives a decedent the right to designate an agent to carry out the disposition. Title 15-19-07 gives a sample form you can use to make your wishes known (this form is legally binding). To find all of these statutes, go to the Colorado Legislature's Web site and click on "CO Revised Statutes."

Connecticut--- As of October 1, 2005, Connecticut citizens have the right to declare their own wishes for the disposition of their body. This declaration will be legally binding. In addition, citizens may appoint an agent to carry out those directions. If a person chooses not to make specific directions, he may still designate anyone he wishes to make those decisions and carry them out. The state's Web site hasn't yet updated their laws to reflect this, but the new law was Public Act No. 05-197, or Senate Bill 1124. If you run a Google search for these terms, you'll come up with the law, which includes a form you can print out to make your wishes known.

DC -- Residents have the right to designate an agent to make decisions about the disposition of the the body. Residents may also make written directions for the disposition of their body that supersede any other party's wishes. These rights can be found in the DC Code, Division 1, Subsection 3-413.

Florida --Yes, personal preference law.

Georgia --- Georgia law allows you to appoint an agent to direct the disposition of your remains within the state's Durable Health Care Power of Attorney form. See Georgia Code Title 31, Chapter 36

Idaho -- Unfortunately, personal preference can only be established in a prepaid funeral arrangement. Also, one may only designate an agent through a prepaid plan.

Illinois -- As of January 1, 2006, Illinois citizens can declare their wishes for disposition in a written document that is legally binding. They may also designate an agent to carry them out, or to make any decisions if no specific instructions are left. The law allowing this is found under in chapter 755 of Illinois Statutes, Estates, Disposition of Remains Act. Click here and scroll down to look it up.

Indiana --- Yes, designated agent law. Indiana Code section IC 30-5-5-16 states that a health care power of attorney gives the "attorney in fact" the right to "make plans for the disposition of the principal's body." That means if you've filled out a Durable Power of Attorney for Healthcare form and named someone to act on your behalf, that person has the right to make your funeral arrangements, too.

Kansas--- Kansas has a designated agent law which can be found in Statute number 65-1734. To find it, to the Kansas Legislature Web site which allows you to look up laws by statute number.

Kentucky -- Kentucky's laws are confusing. Statute 367.97501 says an "authorizing agent" can legally order the cremation of a decedent. It defines an "authorizing agent" as first the deceased himself, and then the usual next of kin, with no provision to allow a person to designate another agent. The law also says that the authorizing agent has the "right to control the disposition of the remains of a deceased person, unless other directions have been given by the decedent." We read this to mean the deceased's written wishes come first, for all forms of disposition, cremation or burial.

But another statute, 367.97527, says that a person must sign a cremation authorization form before his death if he wishes to make those arrangements legal. Yet further down in the same statute, the law says that the next of kin can challenge the person's prearrangement, and the crematory may not cremate the body without a court order. We hope Kentucky will clean up this confusing, contradictory mess and follow the lead of the majority states with clear, unambiguous disposition laws. To search for these statutes, go here.

Louisiana --Wishes of the deceased will prevail if written and notarized.

Maine --You may designate an agent for body disposition as well as your wishes.You can find this right in Title 22, §2843-A, no. 2 of the Maine Statutes.

Maryland - The state's Advance Directives forms now include the option to name an agent to carry out your funeral wishes. You can download the form (and a rather lengthy instruction booklet) here.

Massachusetts -- How too bad that Massachusetts citizens can only ensure their wishes are carried out by paying a funeral director before they've died. Massachussetts regulation number CMR 239, 3:09 states that if a preneed (prepaid) contract is in force, then the funeral director shall obey it. Otherwise, the right to control the disposition of your body devolves along the usual next-of-kin line, whether you like it or not.

Michigan --You may designate your wishes in your will, but your next of kin may override them. If you do make a will, be sure everyone knows where the will is and what it says. Often the will isn't read until after the body is buried.

Minnesota --There is a statutory duty to comply with the written wishes of the deceased, but next-of-kin have priority if your wishes are contested.

Mississippi -- As of July 1, 2004, your prepaid funeral contract is legally binding and cannot be overriden by your next of kin. It's too bad the only way to secure your right to decide what happens to your body is to pay the funeral director ahead of time. Mississippi has the worst consumer protection laws in the country regarding prepaid funerals.

Missouri -- Yes, Designated Agent law. Chapter 194, Death - Disposition of Dead Bodies, Section 194.119, of the Missouri Revised Statutes, states that the next-of-kin has the "right of sepulcher" --- the right to custody and control of the dead body. What's interesting is that in Missouri, you can designate anyone you want to be your next-of-kin . The law says:

"Any person may designate an individual to be his or her closest next-of-kin, regardless of blood or marital relationship, by means of a written instrument that is signed, dated, and verified."

On this form, you have to list the names and last-known addresses of your closest blood kin, but the person you designate to be your actual "next-of-kin" has the ultimate legal authority to carry out your wishes. Go here to read the law.

Nebraska --Written or oral wishes of the deceased regarding disposition must be honored. In 2003, Nebraska also added a designated agent provision in statute section 71-1339

Nevada -- Yes, designated agent law. New laws in Nevada as of 2003 give citizens the right to designate an agent for burial or cremation. See Chapter 451 of the Nevada Revised Statutes for details.

New Hampshire -- Yes, there is a designated agent law. From the New Hampshire Statutes:

290:17 Custody and Control Generally. - The custody and control of the remains of deceased residents of this state are governed by the following provisions:

I. If the subject has designated a person to have custody and control in a written and signed document, custody and control belong to that person. The person designated by the subject shall be entitled to no compensation or reimbursement of expenses related to the custody and control of the subject's body.

II. If the subject has not left a written signed document designating a person to have custody and control, or if the person designated by the subject refuses custody and control, custody and control belong to the next of kin.

III. If the next of kin is 2 or more persons with the same relationship to the subject, the majority of the next of kin have custody and control. If the next of kin cannot, by majority vote, make a decision regarding the subject's remains, the court shall make the decision upon petition under RSA 290:19, IV.

New Jersey -- New Jersey adopted a Designated Agent law in 2004. Go to the NJ Legislature page and see Title 45:27-22 to see the statute conferring this right. Beware - you must make your wishes known in a will, so make that will available to your family and friends, not locked away in a safe deposit box.

New Mexico --There is a statutory duty to comply with the written wishes of the deceased. Any adult may authorize his/her own cremation prior to death.

New York-- Section 4201 of the Public Health Law allows a person to designate an agent to dispose of his remains. The law includes a statutory form that may be used. See the Legislature's web site.

North Carolina --An irrevocable preneed arrangement may not be altered. In 2003, North Carolina added a designated agent provision in statute Chapter 90. To find it, click here and scroll down to look for § 90-210.124 --- Authorizing agent, § 90-210.125 --- Authorization to cremate, § 90-210.126 --- Preneed cremation arrangements.

Ohio -- Effective October 12, 2006, Ohio citizens may designate anyone they wish to make funeral, cremation, or anatomical donations of their bodies after death. This new right can be found in 2108.70 of the Ohio Code. See the attachments below to download a copy of an Ohio Designated Agent Form.

Oregon -- Yes, there is both a personal preference and a designated agent law. You may find the statutory form to use to direct your disposition, and to appoint an agent to do so, under Oregon Revised Statutes, 97.130, at here.

Pennsylvania -- Yes, designated agent law. Pennsylvania Statute, Title 20, Chapter 3, Subsection 305, gives citizens the right to make a "statement of contrary intent" that will override the next-of-kin's usual authority and let the citizen designate whom he wants to control the disposition of his body. Click here to search the Pennsylvania statutes.

Rhode Island --- Rhode Island has a designated agent law. Look up section 5-33.2-24 of the statutes, and see section SECTION 5-33.3-4 for a suggested form.

South Carolina --Yes, personal preference law. A person may authorize his/her own cremation in a Cremation Authorization Form --- see South Carolina Code of Laws, Section 32-8-315 at the State Legislature Web site. Section 32-8-320 allows you to name any person you like (it does not have to be your next of kin) to carry out your wishes for cremation. You must do so in a " will or other verified and attested document." OUR ADVICE --- Do NOT use a will to assign this power to someone. Why? Because the will usually isn't read until after your body is disposed of. Instead, draw up a short, dated document stating that you give such-and-such person the sole right to make arrangements for your disposition, as allowed by SC Code 32-8-30. Date the document, and have it notarized. Make sure your survivors have a copy.

South Dakota --Yes, personal preference law, found in Title 34, Chapter 26, Section 1 of the South Dakota statutes.

Tennessee -- Tennessee citizens can give the right to make disposition arrangements to the person named as their agent in a durable health care power of attorney. This right is outlined in the Tennessee Code, Title 34, Chapter 6, Part 2.

Texas --There is a statutory duty to honor the wishes of the deceased. You may also name an agent to control disposition of remains. To view Texas Health and Safety Code 711.02, which contains a form to appoint an agent, see the attachments below.

Utah --A designated agent may carry out the wishes of the deceased. A person may direct his/her own disposition (burial or cremation) in an approved document.

Vermont --- Effective September 1, 2005, Vermont has added the right to specify the disposition of one's own body, and the right to designate an agent to make decisions about bodily dispostion, to the state advance medical directives law. What a sensible approach! See Title 18, Part 231 of the Vermont Statutes. You can download a Vermont Advance Directive from the Vermont Ethics Network.

Virginia -- Yes, a person may designate an agent to arrange for the disposition of his/her body. See § 54.1-2825. There is a statutory duty to comply with the written wishes of the deceased.

Washington --There is a statutory duty to comply with the written wishes of the deceased. A preneed agreement may not be substantially altered by survivors. You can find the right to direct your own disposition in the Revised Code of Washington, 68.50.160, here. It states:

Right to Control Disposition of Remains
(1) A person has the right to control the disposition of his or her own remains without the predeath or postdeath consent of another person. A valid written document expressing the decedent's wishes regarding the place or method of disposition of his or her remains, signed by the decedent in the presence of a witness, is sufficient legal authorization for the procedures to be accomplished.

West Virginia --Only a prepaid funeral arrangement will prevail.

Wisconsin --- Assembly Bill 305 was signed by the Governor March 5, 2008, giving citizens the right to designate an agent to carry out their funeral wishes. We've created a form you can download WIDesignatedAgent.

Wyoming --Case law requires survivors to comply with the wishes of the deceased.