For days a courtroom packed with attorneys, grieving family and friends argued about not only who should have custody of Anna Nicole Smith’s baby girl, but also how and where to bury Smith’s body. The same fight erupted over singer James Brown, whose body wasn’t buried for months because family members fought over his wishes. Such battles are not just for celebrities. Ohio House Bill 426, referred to as the Right of Disposition Bill, went into effective on October 12, 2006, to help prevent legal battles like these.
Q: Have disputes about disposing of bodies been on the rise in Ohio? If so, why?
A: It is increasingly common for more than one family member to have an interest in funeral arrangements when someone dies. Upon a death, a second spouse and children from a first marriage may not agree on these arrangements. If the deceased’s wishes are not spelled out in a legal document, this can lead to a court battle. People are living longer and remarrying, which can give rise to squabbles.
Q: What are some of the funeral issues that lead to court battles?
A: There may be disputes about what type of religious observance, if any, should be performed, where the deceased should be buried, or whether the deceased would have preferred cremation over burial, or how a headstone should read.
Q: How does Ohio law address potential conflicts?
A: Ohio law now authorizes individuals to name a person in a written document that meets certain requirements to make their funeral, burial or cremation arrangements. Section 2108.72 of the Ohio Revised Code (ORC) includes these requirements and a specially designed form (called a funeral directive form) that can be used specifically for this purpose.
Assuming these requirements are met, a will also may include such an authorization. Be aware, though, that a standard will must be adapted to meet these requirements. Also, people often wait until several days after the funeral to consult a will. If an appointment of an agent with right of disposition is included within a will, close relatives or friends should be informed about the appointment when the will is drafted. And, it could take time to formally admit a will to probate, or someone could question whether the will is the most current will.
Q: What happens if a person fails to name anyone in a document?
A: This Ohio law also says that, if a person fails to take this step, then a prioritized list of individuals will be authorized to make such decisions. The first person with such authority is the decedent’s surviving spouse. If there is no spouse, then authority falls, in order, to: adult children, parents, siblings, grandparents, lineal descendents (children, etc.) of grandparents, the person’s guardian, or, finally, to a person willing to accept the responsibility (such as a clergyperson).
Q: Are there any safeguards in place in case the person designated to make such arrangements is no longer the “appropriate person” to do so?
A: If the person designated to make the funeral arrangements is being charged with murder, manslaughter or domestic violence related to the death of the deceased, then he or she is disqualified. A person may be disqualified if a divorce action is pending at the time of death. The probate court also can step in if the designated person is estranged from the decedent at the time of death.
Q: Does the law allow a person designated as having the right of disposition to make any other decisions after someone has died?
A: Yes. Ohio law now gives the designated person the authority to consent to an autopsy or postmortem examination on the deceased person’s behalf.
Q: Can an individual designate a group of persons rather than one person to make decisions?
A: Yes. A group of persons may be authorized. If the persons in the group or class disagree, however, the decisions of the majority prevail. If, after reasonable efforts, not all of those in the group or class have been located, the decisions of the majority of those who have been located prevail. If a majority of the persons cannot reach a decision, an interested party can ask the probate court to step in. The probate court of the county in which the declarant or deceased person lived at the time of death then decides who should have authority to make a decision after considering the same criteria as when the court assigns a statutory right of disposition.
Q: What criteria does the court consider in deciding whether a particular person should be given authority to make funeral decisions?
A: The court considers:
• whether the evidence demonstrates a close personal relationship between the deceased and the person(s) seeking authority to make decisions;
• the reasonableness and practicality of that person’s plans for the deceased person’s funeral, burial, cremation or final disposition;
• the willingness of the person to assume responsibility to pay for the funeral;
• the convenience and needs of other family members and friends wishing to pay their final respects; and
• the express written desires of the declarant or deceased person.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Columbus attorney Thomas Taneff, who concentrates on probate and adoption law.