James M. Weaver, PA

Disposition of Remains – Who Decides?

In creating an estate plan, many do not consider the eventual disposition of their remains. Without written instructions on disposition of remains, there may be some question about who is responsible for this task. Florida law provides some guidance on this matter.

Florida Law on Disposition of Remains

Historically, the state of Florida offered little guidance as to the "ownership" of a deceased body. When a deceased person did not leave specific instructions for disposition, family members would often fight and take the issue to litigation. 

In 2005, Florida established a law establishing a "legally authorized person" to make this decision. Fla. Stat. § 497.005 includes a list of such legally authorized persons at different levels of priority, starting from the deceased person themselves.

Legally Authorized Persons to Handle Remains

In most cases, this responsibility falls to the living spouse, considered second on the list of legally authorized persons. Even where there was a judicial separation, the spouse determined disposition over the decedent’s remains, despite the objections of the children. (Andrews vs. McGowan, 739 So.2d 132 (Fla. 5th DCA 1999).)

But what happens if there is no living spouse? The priority moves down as follows:

  • A child at least 18 years or older
  • A parent
  • A sibling at least 18 years or older
  • A grandchild at least 18 years of older
  • A grandparent
  • Anyone in the "next degree of kinship"

If there is no one who claims the decedent’s remains, or if there is no one who is not legally responsible for burial, then the county is responsible.

Stating Your Burial/Cremation Disposition Wishes

What happens if you state your burial/cremation disposition in your will, then change your mind? You can change your mind and provide oral instructions to establish this change. (Cohen vs. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005)) 

However, it probably won’t help to leave your burial instructions in your will. The will of Franklin D. Roosevelt, a lawyer and even a U.S. President, laid out specific instructions in his Will for his funeral ceremony and burial. Unfortunately, the Will was reviewed only after he was laid to rest.

If it can happen to the President of the United States, there is at least a fair chance that it can happen to you and me. Tell your personal representative. Tell your spouse. Tell your children. Write them letters, etc.



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