Who Decides What Happens to a Deceased Person’s Remains

Who gets to decide the disposition of a deceased person’s remains? Who decides whether a person’s remains get buried or cremated and the final resting place of the body or the ashes?

We sometimes deal with situations where a person dies and there is a disagreement between members of his family regarding whether they should be buried or cremated or what should happen to the remains.
For example. In some typical scenarios, you can have the decedent’s second wife directing the funeral home to cremate the remains, and the children directing the funeral home to bury the remains next to his first wife, their mother.

In a situation like that, children typically say that the second marriage was not valid, especially if the decedent and the second wife were in a divorce proceeding at the time of the decedent’s death. There are also scenarios where one child says that their mother or father should be buried and the other child says that their mother or father should be cremated.

There are also situations where the executor of the decent’s will having a disagreement with the children or other relatives of the decedent regarding the interment of his or her remains. People say, “I want my father, mother, husband, wife, brother, sister, aunt, or uncle cremated or buried and someone else is directing the funeral home to do the opposite.

New York Public Health Law 4201(2)(a) states that the following persons in descending priority shall have the right to control the disposition of the remains of such decedent:

(i) the person designated in a written instrument executed pursuant to the provisions of this section;

(ii) the decedent’s surviving spouse;

(ii-a) the decedent’s surviving domestic partner;

(iii) any of the decedent’s surviving children eighteen years of age or older;

(iv) either of the decedent’s surviving parents;

(v) any of the decedent’s surviving siblings eighteen years of age or older;

(vi) a guardian appointed pursuant to article seventeen or seventeen-A of the surrogate’s court procedure act or article eighty-one of the mental hygiene law;

(vii) any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;

(viii) a duly appointed fiduciary of the estate of the decedent;

(ix) a close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section; or

(x) a chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate’s court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section.

Disagreements over the disposition of the decedent’s remains are often a precursor of further disagreements in the family, especially about the validity of the decedent’s will and the disposition of his estate.

If you have a disagreement regarding the disposition of your loved one’s remains, you can call the Law Offices of Albert Goodwin at (212) 233-1233 or 212-233-1233.