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Cremation and Florida Estate Planning

| Jun 10, 2020 | Elder Law, Estate Planning |

When a person dies in Florida, a decision needs to be made whether to bury or cremate their remains. The decision is important, having both personal and financial implications. This blog will discuss some of the legal considerations that come into play when someone dies and cremation is the desired final disposition.

When it comes to cremation, one of the most pertinent questions is who is authorized to make the arrangements and give permission for the cremation? Section 497.607, Fla. Stat. describes the procedure. In essence, it specifies that “A cremation may not be performed until a legally authorized person gives written authorization…for such cremation” (emphasis added).

So the issue comes down to who is a legally authorized person? Section 497.005, Fla. Stat. provides the order of authorized persons as follows:

(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… [under certain federal regulations]

(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.

If no family member exists or is available, then the scope of who is an authorized person may extend to a number of non-family persons. These include the guardian of the deceased 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 deceased person at the time of death; a public health officer; the medical examiner, county commission, a 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 who is willing to assume the responsibility as the legally authorized person.

The persons listed above are by priority class. This means that the authorized person having priority starts at the top and goes down until there is someone in the class that can act. For example, if a person has not pre-arranged their own cremation, then priority to make the arrangements would go down the list. If there’s no surviving spouse, it would go to adult children and if none, then to a surviving parent.

Where there is a person in any priority class listed under the statute, 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. For example, if Bob dies, has no spouse but has three adult children, one of the three children can give authorization for cremation so long as they represent that the other children are in agreement. If the authorized person cannot make this representation, then all of the persons in that priority class likely will need to give the permission.

In our estate planning practice, we often have clients ask whether they should include directions regarding final disposition (cremation or burial) in their estate documents. Usually, these would be put in their Will or Trust in situations where the client wishes for them to be included. Our response is that there is no harm in doing so but it is equally important that the person speak with their loved ones so they know the person’s wishes. Chances are that a funeral home will never see the Will. Sometimes even the family does not review the Will before the decision is made regarding final disposition. Instead, a funeral home or crematory more likely will ask the “authorized person” to make the decision. If a person has informed their loved ones of his or her intentions, then the one(s) in the highest authorized class (such as a spouse, child or parent) can make the final arrangements for cremation or burial. The point is: Make sure your loved ones know your desired intentions! These things are hard to talk about but it’s really important to do so!

With this in mind, we encourage all persons doing their estate planning to consult their estate attorney and to also talk to their loved ones. Doing so ahead of time can make a person’s desires clear and lessen the chance of there being indecision or disputes.

 

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