Who Decides What Happens To Your Final Remains?
Who makes the final decision regarding the disposition of a decedent’s remains? It is important to note that the state where the remains are located has the jurisdiction to make the determination. Even if the deceased party is a resident of another state, Florida Law will govern the disposition of a person’s remains, so long as they are pronounced dead in the state of Florida. Likewise, if a person dies in another state, the state where they died will govern the decision.
Disposition of Decedent Remains Under Florida Law
Under Florida Law, the disposition of a body is not a property right, but a personal right of the decedent. Furthermore, the decedent’s intent controls the disposition of the remains rather than the survivor’s intent. The remains are not subject to ownership by the decedent’s beneficiaries. So, how does the state determine the decedent’s intent?
The state of Florida considers the written instructions left behind by the decedent. In estate planning, the declaration of disposition of remains is a legal document in which the individual establishes how they would like their body to be treated after death. If no beneficiaries dispute the disposition of the remains, the decedent’s written instructions will guide loved ones and fiduciaries on how to proceed. If the disposition is contested, the contesting party will have an opportunity to petition to the court. The deceased’s burial instructions are not conclusive of the decedent’s intent if clear and convincing evidence shows the decedent had other intentions.
What if You Don’t Leave Any Instructions?
In the absence of written instructions, a family member will be responsible for decision-making regarding the decedent’s remains. The surviving spouse will have top priority, followed by adult children, adult siblings, and adult grandchildren. If none of the listed family members are available, the decision will be made by the person with the next degree of kinship, or unrelated parties with authority, such as a nursing home director.
If you want to have a say in what happens to your body after death, it is crucial to establish an estate plan. Whether you want to be buried, entombed, or cremated, estate planning is the best way to ensure that your wishes are recognized and respected.
Not sure where to start? The Law Offices of Hoyt and Bryan is Florida’s only law firm with two attorneys who are dual board certified in Wills, Trusts and Estates and Elder Law. Let our experienced attorneys provide you with expert legal counsel and guide you through the process of developing a personalized estate plan. Call us at 407-977-8080 to schedule a free consultation. Secure your legacy today!
