I’m Dead, Why Do I Care?
Why would you worry about the disposition of your remains? What does that even mean? Are there really that many options?
When a person dies, someone must make decisions concerning their burial and funeral arrangements; they must “dispose” of the deceased’s remains.
In fact, family members have a legal duty to “inter” (bury) the deceased and to pay reasonable costs to do so.
In Texas, you have three options when determining how to make decisions concerning the disposition of your remains.
You can leave detailed written instructions for your family regarding your wishes, you may appoint an agent to control the disposition of your remains, or you may allow the issue to wait until after your death and just allow disposition of your remains according to law.
As you’ll see below, doing nothing and letting the law control the disposition of your remains can create terrible stress on your family and loved ones and lead to expensive litigation.
Detailed Instruction to Family
If you have strong feelings about how you want your affairs handled, you may leave detailed, written, instructions for your family; including whether you choose to be buried, cremated, have your ashes scattered in a specific manner, etc. In many instances, people know exactly what they want to happen to their body when they die.
You can instruct your family to cremate your remains, (if you’ve ever wondered what this process entails, check out this YouTube Video), scatter your cremains in a specific area, keep your cremains in an urn, or even bury your cremains in a cemetery.
You can instruct your family on which cemetery you want to be buried in, the type of funeral service desired, the theme of the funeral service, the desired pall bearers, and give instructions as to who you would like to offer a eulogy.
In 2005, journalist Hunter S. Thompson passed away leaving directions that he wished for his body to be shot out of a cannon to the tune of “Mr. Tambourine Man.” Cécile Lane left directions for her family to have her ashes placed inside an “eternal reef ball” which was to be placed in the ocean to create a new habitat for marine life. Many companies are in fact making a killing, no pun intended, creating these one-of-a-kind after death “experiences.”
—See Odd Funeral Requests (launched into space, turned into fireworks, turned into artificial reef)
The Qualified Writing
A qualified writing under the Texas Health and Safety Code could be part of your will, part of a prepaid funeral contract, or a separate writing altogether. If the instructions are part of the your Will, the law states they may be carried out without first having to go through the lengthy probate process. If your instructions are in a separate writing, the recommended way, that writing may only be revoked by a subsequent writing by you.
Appointment of Agent
Instead of having to plan your own funeral, you may also choose to appoint someone who will decide how to handle the disposition of your remains. Rather than leaving detailed instructions for your family to follow, you can simply name a person who will essentially become your agent and who will have the ability to make these decisions for you. Again, this may be a separate writing or may be included in a will.
It is important to remember that when deciding to appoint an agent in this capacity, you want to choose someone you trust and who knows you well. It would be pertinent to ensure that person is ok with being appointed, since this person would also have to agree to the appointment, and to discuss your wishes with that individual so that they have some idea of what you would prefer. This is a very common designation among spouses.
Letting the Law Control
Texas law sets out a priority list of those with the right to control the disposition of a decedent’s remains. These persons may make the decisions concerning interment, in the following order:
1. a person designated in a written instrument as detailed above;
2. the decedent’s surviving spouse;
3. any one of the decedent’s surviving adult children;
4. either one of the decedent’s surviving parents;
5. any one of the decedent’s surviving adult siblings; or
6. any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.
What this means is, if a decedent left no writing to control the disposition or to appoint an agent, these people have priority to make the necessary decisions. Remember, this is a prioritized list so those at the top would win over those further down the list. This can get pretty tricky and can lead to expensive and messy court battles if your children want something different than your spouse (especially when your current spouse isn’t the parent of your children).
Where do you start?
Start by thinking about whether you want to be buried or cremated. Do you want special songs at your funeral? Do you want a big party? Do you want a memorial service on a beach? Do you want your ashes spread under the Statue of Liberty?
Then contact your estate planning attorney. They can help you decide which of the three options is best for you. Either way, your estate planning attorney can help you navigate the muddy waters in deciding what option best fits your, and your family’s, needs and desires.
–Authored by Kayla R. Wimberley, Esq.,
Matthew Harris Law, PLLC – Estate Management Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479