February 13, 2014

Disposition of a Decedent's Body

Eventually everybody reading this article will have their body disposed in some manner. This is one statement that I can say with absolute certainty. To quote a line from the 1991 movie Bill & Ted's Bogus Journey, "You might be a king or a little street sweeper, but sooner or later you dance with the reaper." Whether by cremation, burial or some other method, one's body will end up somewhere. Consequently, California law has a statutory scheme for deciding who is authorized to dispose of a decedent's body and what they may do.

Although a person may specify their manner of disposal in a will, the common method is to appoint an agent pursuant to an advanced health care directive. Health & S C §7100(a)(1). This agent is authorized to dispose of the body as the decedent instructed them to do so.

Detailing one's burial desires is important for a person who wants to be buried in an unorthodox manner or against the wishes of their family. For example, some religious orders disfavor cremation, whereas others call for a prompt burial following death. If a person wishes to be a contrarian, it is prudent to draft an advance health care directive to ensure that one's wishes are honored. Otherwise, a family feud can ensue which will invariably be messy.

In Cohen v Guardianship of Cohen (Fla App 2005) 896 So2d 950, the surviving spouse petitioned to have her late husband be buried with her in Florida. The couple, Jewish residents of New York when the husband wrote the will, originally called for the husband to be buried in the family  plot, a Jewish-only plot in a New York cemetery. The wife, who was not Jewish, argued successfully that her husband had changed his mind and that he should be buried in Florida with her, presumably in a non-Jewish cemetery. An appellate court agreed with the wife and her late husband was presumably buried in Florida because it found that the late husband had changed his burial desires. 

While Cohen is an extreme example of the length a burial desire can be contested, it nonetheless demonstrates that such an example exists. Hence it is prudent to draft an advance health care directive so that the decedent's agent has the authority to dispose of their remains. Otherwise, an over-zealous family member or friend can try to impose their subjective viewpoint on the subject.