Who Gets to Control my Dead Body? Part 2

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate and Probate Attorney

In Part 1 of this series I introduced you to a court case involving who has decision making powers over funeral arrangements and payment obligations among family members. In Part 2 I will be discussing the appeal of this case.

The interment statute of New Jersey, creates a hierarchy as among survivors for purposes of determining which of them is authorized to control the disposition of a loved one’s remains. At the same time, however, the statute expresses a preference for carrying out the wishes of the decedent by referring to the right of the decedent to give directions and by authorizing others to act only in the absence of such directions. This enumeration is necessary to make clear “who may decide on burial…to avoid, or to end quickly,” disputes regarding burial.

In this appeal of the trail court decision there is nothing in the statute providing that the statutory hierarchy should be modified based on whether natural born children inherit or are disinherited under the will. Their exclusion from the Will could reflect decedent’s charitable nature, or that the children were provided for otherwise during the decedent’s lifetime, or that they did not require a bequest.

Under the will, the decedent directed that her “just debts and funeral expenses” be fully paid and satisfied. It was the Executor’s task to “settle and distribute the estate…in accordance with the terms of any…will” (N.J.S.A. 3B:10-23). This obligation included the payment of funeral expenses. With that said, however, when a third person makes funeral arrangements for a decedent at the expense of the estate, “all of the authorities uniformly hold that the expenses incurred must be reasonable.” In a reported decision a wife unilaterally made funeral arrangements for her husband, but the Estate refused to pay for the cost, stating it was unreasonable. The court held that the Estate was liable for reasonable funeral expenses and the wife was liable for anything above what was reasonable. The cost of the funeral expenses and burial of the decedent should take into account her “circumstances and social condition…and the value of her estate.”

The take away from this case is that all Last Wills should explicitly designate a funeral representative but in the absence of same, the law defines the priority of decision makers. And always remember, if conflict results, funeral expenses must be reasonable if the person who pays them seeks to be reimbursed from the estate.

To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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