Who decides what happens to your human remains?

“Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” Benjamin Franklin, in a letter to Jean-Baptiste Le Roy, 1789. Benjamin Franklin was correct. Death is inevitable for all of us. As a result, each Missourian should consider what happens to their human remains after they die.
Someone will decide what happens to your body once you die. While it is not a pleasant topic to discuss, it is one all Missourians should contemplate. Disputes among a decedent’s heirs and loved ones are not uncommon. Everything from the type of casket, to the final resting place, to the manner in which a body is disposed, are topics addressed by Missouri courts when parties disagree. In today’s movement away from the traditional family unit, conflicts such as these are occurring with more frequency and can involve ex-spouses, children, stepchildren, same-sex partners, and spouses.
Historically, a person could not determine how his or her body would be disposed because the law did not confer property rights in a dead human body. Eventually, states began to settle into one of two camps: (1) those who recognize quasi-property rights to dead human remains, and (2) those who recognize the topic as a privacy rights issue securing preferential treatment to spouses and loved ones. Missouri falls into the former camp and is a quasi-property rights jurisdiction. Along with other quasi-property jurisdictions, it recognize that a decedent’s oral or written wishes regarding the disposal of his or her body are entitled to consideration and substantial weight.
Perhaps because of the increased number of conflicts among decedents’ modern and arguably more complicated family dynamic, Missouri lawmakers recognized the need to codify and make uniform the manner in which dead human remains are addressed in our state. Missouri lawmakers codified this quasi-property right when they enacted our state’s first statutory right of sepulcher in 2003. The right of sepulcher is the right to choose and control final disposition of a dead human body. In other words, this right confers to others, the right to choose and control the burial, cremation, or other final disposition of a dead human body.
In 2008, the Missouri legislature approved an amendment to its right of sepulcher statute. The amendment was proposed by State Senator, Jolie Justus and Governor Matt Blunt signed Senate Bill 1139 that amended Missouri Revised Statute Section 194.119 and the newly amended law became effective on August 28, 2008. As amended, the Missouri law gives a decedent a process of appointing who will be in charge of his or her funeral arrangements and the disposition of his or her body regardless of familial and marital ties. In her support of the amendment, Senator Justus noted that conferring priority to someone listed in a durable power of attorney benefited gay and lesbian couples and unmarried elderly couples and those who do not prefer family member involvement in his or her funeral arrangements. To that end, Section 194.119 RSMo now confers upon Missouri citizens, the right, while alive and of sound mind and body, to sign a written document providing someone other than a spouse or loved one the right to direct and control dead human remains and in doing so appoints them the title of “next of kin.”
Who enjoys the right of sepulcher if the decedent failed or refused to appoint an attorney in fact or next of kin in a written instrument before his or her death you ask? As currently written, Section 194.119 RSMo provides that the “next of kin” enjoys the right to choose and control final disposition of a dead human body when no written document created before death by the decedent provides otherwise and defines the next of kin as the following persons in the following priority listed who are eighteen years of age of older, mentally competent, and willing to assume responsibility for the costs of disposition: (1) For a decedent who was on active duty in the United States military at the time of death, the person designated by such decedent in United States Department of Defense Form 93, Record of Emergency Data; (2) The surviving spouse; (3) Any surviving child of the deceased (or that child’s qualified guardian if he or she is a minor – some restrictions apply). In the event none of the above-described parties are available, then the next-of-kin shall serve in the order provided in the following subdivisions: (1)(a) Any surviving parent of the deceased; or (1)(b) If the deceased is a minor, a surviving parent who has custody of the minor; or (1)(c) If the deceased is a minor and the deceased’s parents have joint custody, the parent whose residence is the minor child’s residence for the purposes of mailing and education; (2) Any surviving sibling; (3) The next nearest surviving relative of the deceased by consanguinity or affinity; and (4) The county coroner or medical examiner; provided however, that neither the coroner, medical examiner, county, or the state shall be responsible for the cost of disposition.
While Missouri law sets forth a default process and priority for choosing a decedent’s next of kin for disposition of his or her body, the process is not foolproof. The law provides no guidance when any of the above-describe parties enjoy the same priority status such as siblings and children. As a result, Missourians should first contemplate the creation of a prearranged funeral plan to give some guidance to loved ones and others as to their wishes. Moreover, each Missourian should hire an experienced attorney to assist in the creation of an estate planning package that includes a durable power of attorney that clearly sets forth their wishes upon death.
Todd Miller is a monthly contributor and regularly writes and speaks on various legal topic including estate planning, probate, and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been recognized as 2016 Adviser of the Year by GolfInc; Golf Tax Consultant of the Year by Boardroom Magazine three times; and “10 Best” attorneys by the American Institute of Family Law Attorneys and “10 Best” attorneys by the American Institute of Criminal Law Attorneys. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law in 1999 and graduated with honors from Lincoln University in 1991. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, LinkedIn, and Twitter.