Normally, I don’t encourage clients to address their funerals in wills, usually the person will be buried long before anyone necessarily even finds the will. And people sometimes change their mind; it would be a shame to have to redraft an entire will or even to have to execute a codicil if someone decided they didn’t want to be buried as they set out in the will.
Nonetheless, there is a relatively recent change in Florida law that I am seeing as causing some mischief; specifically section 39 of FS 497.005, reproduced below. I am getting calls from children, and sometimes parents, about burial disputes; someone has died, and one family member wants to have a cremation; the other family member wants to have a burial; or disputes over where the body should be buried, which cemetery, which state, which plot. In the past typically funeral homes looked to whoever contacted them; if one daughter contacted the funeral home the funeral home would look to that daughter to decide the disposition of the body. Unfortunately, the way the law is currently written, funeral homes are getting a bit gun shy; they do not want to get into a dispute with family members, and they are a bit afraid of being sued; some funeral homes are insisting on having consents from all family members of a certain class; if there’s more than one child, they want all of the children to consent; and if they don’t then the funeral homes are basically insisting on a full blown, i.e., expensive, funeral and burial.
What can you do? First, you can enter a preneed funeral contract; you sign a contract with a funeral home, choose exactly what you want to be done after you die, and prepay it. There may be a few other costs associated with it, if someone wants to send flowers or such, but this is probably the best way of insuring that you get exactly what you wanted; you do the detailed planning, sign a contract and pay for it.
Second, if you’re not willing to prepay, then at least write out the instructions ahead of time; be specific; where and how you want the body buried or disposed of, which plot or family cemetery; sign it, date it and put it where someone will find it after your death.
Third, at least designate, in writing, signed and dated, who you want to make the decision; I authorize my Daughter Suzy Smith to make decisions regarding my funeral. Signed, Bobby Smith, dated 1/1/2013.
Lastly, as an aside; if you are a Veteran who lives in The Villages, Florida, or the Spouse or Child of a Veteran who lived in The Villages, Florida there is a National Cemetery in Bushnell, Florida; which provides burial and cremation spaces to United States Veterans and their spouses; their website is here:
Department of Veterans Affairs, Florida National Cemetery
(39) “Legally authorized person” means, in the priority listed:
(a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;
(b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while serving military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;
(c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;
(d) A son or daughter who is 18 years of age or older;
(e) A parent;
(f) A brother or sister who is 18 years of age or older;
(g) A grandchild who is 18 years of age or older;
(h) A grandparent; or
(i) Any person in the next degree of kinship.
In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.