By Josh Slocum
Funeral Consumers Alliance
Conflicts between family members and interested parties over who has the legal right and precedence to make funeral arrangements for a person are sadly common. Here are the basics.
Designated Agents—Most states have some form of a law that allows a person to legally designate anyone she wishes to have the sole legal right to make and carry out funeral arrangements. For a list by state, see this link.
If the deceased had a designated agent in place, that person’s directions will overrule anyone else’s, regardless of marriage or other kin.
In the absence of a designated agent, the legal authority goes like this, from highest to lowest:
1. Living spouse or domestic partner
2. Adult child or children (states vary; some require only one child’s permission while others require majority or unanimous agreement)
. . .and so on down the line of ever more distant relations.
Important —The most frequent “unfounded” complaint we receive at FCA has to do with anger at a funeral director for allowing someone to make funeral arrangements, someone the complainant believes is not legally entitled to do so. While there are cases where funeral directors knowingly (and illegally) allow this, most of the ones we see are not actually the funeral director’s fault. It’s important to discern whether your complaint is actually with a family member who misrepresented himself to the funeral home.
Remember, there is no “next of kin database” in existence. Funeral directors have no way of knowing that dad’s live-in girlfriend isn’t his legal wife if she says she is. And no, it’s not reasonable to expect funeral directors to demand marriage certificates or some other “proof” of kinship. State laws require funeral directors to make a good faith effort to secure the permission from the legally authorized people. But that depends on them knowing who those people are, and a party who lies to the funeral home can upset the process.
If you think someone has illegitimately taken over the funeral arrangements for a family member, try to ascertain first whether that person was actually the deceased’s legal designated agent. And it’s worth giving the funeral director the benefit of the doubt unless you have evidence that he or she knowingly participated in a fraudulent transaction. Most funeral directors don’t, and they don’t want to be a referee over family disputes. I can’t blame them. Quite frankly, I’ve been shocked at how cruel and mean-spirited otherwise nice people can behave when they see an opportunity to have a go at a despised relative over the funeral arrangements.