Ask A Lawyer – “When a person dies, who gets to choose the manner of burial and funeral arrangements?”

A death of a loved one is stressful enough. Worse still if the living cannot agree on what to do with the body. Given the cultural significance of funeral and mourning rites, it is possible for funeral arrangements to become a source of contention. Should the body be buried, or cremated? If buried, where should it be buried? If cremated, who will keep the ashes?

The law establishes a clear decision-making hierarchy when it comes to finding the final resting place for the deceased. The right and the duty to dispose of the remains belongs to the personal representative of the deceased. A personal representative is either the executor named in the will, or, if there is no executor, a court-appointed administrator of the deceased’s estate. If there is no personal representative, then the duty passes on to the next of kin – first to the spouse, then to the parents if there is no spouse, then to other next of kin in order of consanguinity.

Whoever the decision-maker may be, they have the sole authority to decide what happens with the body. They do not need to follow the wishes of the family or even of the deceased. So long as the manner in which the body is disposed is reasonable, the law will not interfere. Thus, for example, if the spouse of a deceased wants a cremation but the parents object on cultural grounds, they likely will not be able to prevent the cremation, because cremation would be considered a reasonable way to dispose of the body. The same is true of related issues – such as deciding in which cemetery to bury the body, or what happens to the ashes if it is cremated.

While the wishes of the deceased can (and normally should) be taken into account, they are not binding. In fact, the personal representative may be required not to follow the deceased’s wishes if they are too extravagant, unreasonable, and expensive in a way that harms the estate’s creditors.

It is possible for someone to acquire the authority over the remains after the burial has been completed. This is especially likely if there is no executor appointed by will. Since it takes a while for a court to appoint an administrator of the estate, the body will most likely be already buried by the next-of-kin before the administrator assumes their office. In such circumstances, it will be difficult for the administrator to undo the funeral arrangements the next-of-kin had chosen. While it is possible to exhume a body, the administrator’s wish to effect a different funeral arrangement most likely will not be considered a good enough reason by the law to permit an exhumation.

For more questions about this or any other legal issue, please contact us.