Who Gets to Control my Dead Body? Part 1

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

Here is another recent court case involving priority of decision making for funeral arrangements and the payment obligations for that funeral among family members and the estate executor when a conflict on reimbursement costs comes up.

N.J.S.A. 45:27-22(a) provides that if a testator (creator of the will) appoints a person “to control the funeral and disposition of human remains, the funeral and disposition shall be in accordance with the instructions of the person so appointed.” However, if no such person has been appointed, and no other direction has been given by a court, then the statute sets forth a hierarchy of individuals allowed to control the funeral and disposition of remains. Specifically, the statute cites:

If the decedent has not left a will appointing a person to control the funeral and disposition of the remains, the right to control the funeral and disposition of the human remains shall be in the following order, unless other direction has been given by a court of competent jurisdiction:

1) The surviving spouse of the decedent of the surviving domestic partner.

2) A majority of the surviving adult children of the decedent.

3) The surviving parent or parents of the decedent.

4) A majority of the brothers and sisters of the decedent.

5) Other next of kin of the decedent according to the degree of consanguinity.

6) If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

Here, the court found that “because the children of the decedent were explicitly written out of the will…the statute clearly indicates that the brother had the legal authority to direct the funeral.” Thus the issue was taken up on appeal.

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.