Real Property, Trust and Estate Law Journal

You Can’t Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control Over Funeral Planning

by Tanya D. Marsh

Author’s Synopsis: Americans have more choices than ever before with respect to the disposition of their remains after death. For some people, the choice of burial place, or the election to have their remains cremated, is the final opportunity to express and fulfill important values. American common law has long provided decedents with the broad right to direct the disposition of their own remains after death. However, an inconsist-ent patchwork of state statutes has complicated and frustrated this fundamental common law right. Many states require decedents to comply with strict formalities, or prohibit decedent control outright.

This disconnect between common and statutory law creates problems for decedents and estate planning professionals for several reasons. First, funeral and disposition directions are often a neglected aspect of estate planning. Second, the laws that determine the enforce-ability of such directions are based on where the remains are located, not where the decedent resided. This Article examines these problems and provides a comprehensive appendix listing and summarizing each state’s “personal preference” and “designated agent” laws as an aid to practitioners.

I. Introduction

Although it may seem strange to speak of “rights” belonging to the deceased,1 American law uniquely protects the interests of the dead.2 Strong and longstanding social and legal norms permit broad testamentary freedom and promote respect for “dying wishes.”3 Significant legal and scholarly attention has been paid to the “blazingly idiosyncratic” freedom granted by American law that allows us to direct the disposition of our property after death.4 Although that freedom is not without limits, the essential premise is that “[a] testator’s right to bestow his property by will at death is as absolute as his right to convey it during his life time.”5 Since the 1540 Statute of Wills,6 the will has been the primary legal mechanism used in the Anglo-American legal system for the post-mortem distribution of property.7

William Blackstone defined a will as “the legal declaration of a man’s intentions which he wills to be performed after his death.”8 Although the primary purpose of the will is to direct the disposition of property, as Blackstone’s definition suggests, wills have also been used in England and America to declare a person’s intention with respect to a broader range of topics. One common use of wills has been to memorialize the testator’s desires regarding the final disposition of his remains.9 It is not only the wealthy who have used the will to attempt to control the disposition of their remains.10 Reported cases demonstrate that this has been a wide-spread practice in England and America for centuries.11

The practice of using the will to direct the disposition of remains is an expression of a longstanding common law principle, reaching back to Roman law, that decedents have the right to determine the manner and location of the disposition of their remains.12 Such a right resonates with modern American conceptions of personhood and privacy, and the legal and cultural norms that grant us the power to control our own bodies during life.13

American law regarding the status, treatment, and disposition of human remains is essentially state law. There is a significant base of common law that reflects an adaptation of seventeenth century English, Protestant social norms to the American colonial experience. Those norms were promoted and reinforced by legal precedents from English common and ecclesiastical law but filtered through the practical challenges faced by the colonists.14 Beginning in the early twentieth century, state legislatures began enacting statutes that supplemented and formalized aspects of the common law, but that did not completely replace it. There has been little uniform law activity in this area, so while the common law is fairly coherent and consistent, state statutes vary widely.15

This irregular transition from common to statutory law has complicated and frustrated the common law right to control one’s own remains by inconsistent state statutes that require decedents to comply with strict formalities or even prohibit decedents from expressing their preferences. An analysis of these statutes and their impact suggests that there was no deliberate decision to undermine the common law principle. Instead, the episodic derogation of the common law principle appears to be the result of a focus on other policy choices.

Part I of this Article provides the background necessary to understand these problems. It begins with a brief history of the law of human remains in the United States, summarizes the modern common and statutory law regarding who has control of a person’s body after death, and concludes with a discussion of the options available to modern Americans for the disposition of their remains.

Part II examines three issues caused by the modern statutory regime. First, many state statutes create unnecessary issues due to their formalistic requirements. Second, the lack of consistency between the states is problematic because, although we ultimately cannot control where we die (unless we never leave home) and cannot reasonably make arrangements for death in all fifty states, the law of the state in which a person dies appears to govern the disposition of their remains.16 Third, conflicts between common law principles and statutes create uncertainty and lead to litigation. It is not surprising that there are disconnects between the common law and statutory law since the law of the dead receives little attention from scholars and legislators. But this uncertainty wastes judicial and personal resources while failing to protect personal freedom.

II. Development of the Law of the Dead in the United States

The modern American law regarding the disposition of human remains is a mixture of statutory and common law.17 The philosophies that inform the common law are rooted in Christian doctrine, Western European cultural practices, and Roman law.18

As a general matter, the common law of the United States at the time of the Revolution was based on the common law of England. Unfortunately, the common law of England at the end of the eighteenth century had few doctrines relevant to the law of human remains.19 Instead, the treatment and disposition of human remains was largely determined by ecclesiastical law, the rules promulgated and adjudicated by the Church of England.20 Scholars have been unable to pinpoint when the Church obtained dominion over human remains in England, but by the time of William the Conqueror (1028–1087), “the temporal and spiritual jurisdictions were severed and control of the churchyards and burials was absorbed by the ecclesiastical authorities.”21

There was some limited common law. For example, the common law mandated that every English person in good standing with the Church of England had a right to be buried in his or her local parish churchyard at no expense.22 It also imposed a duty on the owner of the real property upon which a person died to convey the decedent’s remains, decently covered, to the local parish.23

There were theological and practical reasons for awarding primary control over human remains to ecclesiastical law. Given the centrality of human remains to the promise of resurrection and eternal salvation, the Church had theological justification to dictate the means of disposing of the dead.24 In addition, the Church owned the churches and churchyards in fee simple.25 After a person died, the remains were conveyed to the local parish church.26 The Church then took “possession” of the body, conducted The Order of the Burial of the Dead,27 and protected it so long as it remained in consecrated ground.28 Seventeenth century Anglican doctrine refers to the Church holding human remains “in trust” until the Resurrection.29 It was reasonable, therefore, that the Church should have ecclesiastical jurisdiction over matters concerning human remains after they were buried in real property owned by the Church.30

Although many of the American colonies had statutes consistent with ecclesiastical law, the new states expressly refused to adopt English ecclesiastical law.31 This repudiation of the legal system governing the disposition of human remains left the early law of human remains in the United States in disarray.32 When called upon to resolve disputes related to the dead, early American jurists were frustrated by the legal vacuum left by the absence of ecclesiastical law.33 As one New York chancery court judge asked in 1820, “Are the principles of natural law, and of Christian duty, to be left unheeded, and inoperative, because we have no ecclesiastical Courts recognized by law?”34

The role of the Church of England as protector of human remains after burial was difficult to replicate in a country without an established church. In 1829, the United States Supreme Court, in an opinion authored by Justice Joseph Story, held that the role should be filled by “a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.”35 As a result, although the role of protector of the dead remains a complicated issue in United States law, the jurisdictional authority of the ecclesiastical courts in England has generally been replaced in the United States by the courts of equity.

The collective memory of English practices shaped social norms in the United States, even if the United States did not adopt the system of laws that compelled those practices. Accordingly, although ecclesiastical law was not formally adopted in the United States, the core doctrines of the English law of sepulture strongly influenced the development of American common law principles.36

At the dawn of the twentieth century, the American law of human remains shifted from reliance on social norms shaped by ecclesiastical law to the interest of the new funeral industry. In the nineteenth century, those engaged in the business of preparing the dead for burial were called “undertakers,” and they were often engaged in that trade as a sideline to a transportation or carpentry business. But the rise of embalming at the turn of the century encouraged a group of progressive embalmers to style themselves as “funeral directors.”37 Early twentieth century funeral directors saw themselves as professionals, not tradesmen; that is, they thought of themselves as gentlemen members of the broader medical or scientific community.38 Organizing on a national level, they lobbied state legislatures to establish regulatory licensing structures that would limit the practice of their occupation to those who met minimum education and apprenticeship requirements.39 The modern statutory history of American funerary law is therefore a story of the fledgling funeral industry’s attempt to gain credibility through occupational licensing regimes at the state level.

Today, the federal government has few laws that impact the funeral industry,40 but nearly every state licenses funeral directors and embalmers.41 The essential approach of the state occupational licensing regimes is to broadly define the scope of activities included in “funeral directing”42 and then forbid unlicensed individuals from performing those activities.43 Throughout the twentieth century, the National Funeral Directors Association (NFDA) and similar organizations have played a key role in drafting the law of the dead.44 Most statutes regarding the treatment and disposition of human remains appear in chapters of state code that deal with the licensing of funeral directors and embalmers, and many laws focus on limiting the liability of such licensed persons.45

Thus, Anglican doctrine informed the common law of the dead, and the funeral services industry largely wrote the modern statutory law of the dead.

III. The Decedent’s Right to Control Own Remains

In the English system, the primary goal of the common law was to facilitate the transfer of human remains from the place of death to Church custody. The common law, therefore, imposed a duty on certain persons to convey the deceased to the local parish for burial.46 There was little tension between that duty and the decedent’s longstanding common law right to dictate the method and place of his disposition. The adaptation of these English doctrines to American common and statutory law and the increasing range of available disposition options, however, has revealed unresolved philosophical and practical tensions.

A. Common Law

American common law respects a decedent’s wishes regarding the method of final disposition. This principle is rooted in the Roman law principles that inspired Catholic canon law and, in turn, English ecclesias-tical law.47

The Greeks and Romans respected the right of the deceased to dictate the method and place of the disposition of his remains:

Democritus wished to be embalmed in honey, and it was done. Thucydides says that the bones of Themistocles, by his own command, were privately carried back from Magnesia to Attica, and buried there; and Plutarch tells us, that at the request of Lycurgus, his ashes were thrown into the sea.48

Due to the dogma of literal resurrection, cremation was discouraged or prohibited in seventeenth and eighteenth century Christian Europe. Yet Catholic doctrine and English ecclesiastical law adapted the Greek and Roman deference to the wishes of the dead to Christian practice: “According to the canon law every man is free to choose for himself the burial ground in which he wishes to be interred.”49 Canon law allowed cremation if the decedent expressly requested.50 English law did not expressly permit cremation until 1884,51 approximately the same time that it was legalized in the United States.

Under English ecclesiastical law, the definition of a “decent burial” was fairly limited. It simply required “burial in the consecrated ground of a churchyard.”52 The location of burial was rarely an issue—people were fairly sedentary in pre-industrial England and the common law gave every English person in good standing with the Church of England the right to be buried at the local parish churchyard.53 But adapting English social customs to early American settlements posed practical challenges from the outset. These issues have increased over time as modern life provides more choices in terms of method and location of disposition.54 As a result, the common law right to burial has expanded to a “generally accepted rule that a person can make testamentary disposition of his remains, if consider-ations of propriety and decency do not intervene.”55

Although the common law is clear, enforcement of the right is inherently problematic because decedents are not able to personally enforce their wishes post-mortem. While the idea that every person shall be decently disposed of is described as a “right,” the idea that a person may dictate the method of that disposition is most often described in non-binding terms.56 In an English opinion from the 1880s often cited by American courts, a chancery court held that a decedent may not “by will dispose of his dead body” because, according to English legal authority Lord Edward Coke, human remains are not property, and only property is subject to testamentary disposition.57 Instead, he can simply express his wish regarding the method and place of disposition, and hope that his next of kin or a court respects those wishes.58

B. Statutory Law

There is an uneasy relationship between American common law and statutory law relating to the disposition of human remains. Common law generally consists of broad principles, enforced at equity. Statutory law is focused on the licensing of funeral directors and generally constrains their behavior or provides them with extra-legal ways to resolve uncertainty and absolve themselves of liability. Determining who has the authority to dispose of human remains is a core (and reasonable) concern for funeral directors, and the statutory law largely reflects the industry’s need for certainty.59

There are two groups of statutes that can abrogate or strengthen the common law right to control the disposition of one’s own remains. The first are “personal preference” statutes and the second are “designated agent” statutes. Some states have both kinds of statutes, some have neither, and some have one or the other.

1. Personal Preference Statutes

Forty-two states and the District of Columbia have statutes that provide that the decedent has the right to express a personal preference regarding the disposition of his remains under certain circumstances.60 There is significant variety among those statutes.

One important differentiation is the theoretical basis for the statutes. Only six states have statutes that expressly grant decedents a statutory right to determine the disposition of their own remains.61 For example, Florida law provides: “Subject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements.”62

The remaining states have statutes that do not establish a statutory right, but implicitly assume a common law right by specifying a mechanism for persons to declare how they would like their remains disposed of after death. Arkansas’ statute is fairly typical in its formulation:

[A]n individual of sound mind and eighteen (18) or more years of age may execute at any time a declaration specifying the final disposition of his or her bodily remains at his or her death, provided the disposition is in accordance with existing laws, rules, and practices for disposing of human remains.63

At first glance, the failure to establish a statutory right seems inconsequential. After all, what is the purpose of a statute providing that the decedent may, as in Arkansas, execute a “declaration” if not to effectuate an express common law right or an implicit statutory or constitutional right? But the formulation and placement of these statutes in their respective state codes strongly suggest that the point of the statutes was not to effectuate a right, but to make it more difficult for survivors and estates to invalidate contracts entered into by decedents before death for funeral goods and services and to create bright line rules regarding decedent intent to reduce uncertainty.

Twenty states have statutes that expressly include “funded funeral service contracts” in their personal preference statutes.64 In three of those states, the statute provides that a decedent’s wishes will be respected only if the decedent purchased a preneed funeral contract.65 By linking the enforcement of a decedent’s preference to prearrangement and pre-payment, the influence of the industry in crafting the statutes is clear. These statutes are clearly for the convenience of the funeral industry and award a preference to commercial disposition over other legal options with no justification or explanation.

A key corollary to the personal preference statutes is the absolution of liability for those who rely upon documents that comply with the statutory process for memorializing preference. Although some statutes, like Indiana’s,66 generously forgive “all persons” from liability for following the written instructions of the decedent, most statutes are clearly intended to relieve only funeral professionals from liability and presume the involvement of the industry in preparing human remains for disposition.67 For example, Nebraska’s personal preference statute includes the following provision:

A funeral director and embalmer, physician, or cemetery authority shall not be liable to any person or persons for carrying out such instructions of the decedent, and any teaching institution, university, college, or legally licensed hospital or the director shall not be liable to any person or persons for accepting the remains of any deceased person under a will or other written instrument as set forth in this section.68

Wisconsin’s statute has a similar provision:

I hereby agree that any funeral director, crematory authority, or cemetery authority that receives a copy of this document may act under it. . . . No funeral director, crematory authority, or cemetery authority may be liable because of reliance on a copy of this document.69

Other statutes, like the one in Connecticut, also aim to give the funeral director clear legal authority to resolve inconsistencies between a decedent’s written instructions and contrary survivor intent:

No person may challenge a funeral director’s . . . decision to carry out the directions for disposition contained in a document executed for the purposes of subsection (a) or (h) of this section if the funeral director’s decision . . . and conduct in carrying out such directions for disposition in reliance on such document was reasonable and warranted under the circumstances.70

Note that the Connecticut statute does not compel the funeral director to follow the written directives and only absolves him of liability if he does so over the objections of family members.71

The combination of the release of liability for funeral directors for following directives that comply with the statutory requirements and the emphasis of the statutes on the selection and prepayment of funeral goods and services are clear signals that the personal preference statutes were heavily influenced by the funeral services industry. The result is that in many states commercial consumer preferences are easier to enforce than non-commercial preferences. If, for example, a person in Wisconsin desired to have his body prepared by his religious congregation and buried in a shroud in a (legally-permissible) non-regulated cemetery—choices which would not require the services of a funeral director, crematory authority, or cemetery authority—there would be no absolution of liability for those who carried out the decedent’s wishes.

The statutes also vary greatly in terms of the manner in which an individual is required to express his personal preferences. Nine states and the District of Columbia have statutes that set a very low bar—simply that the instructions be in a writing signed by the decedent.72 Twelve states have statutes that require substantial compliance with a statutory form.73 Nine states have statutes that require the declaration to be notarized (but not witnessed).74 Nine states have statutes that require the written instrument to be witnessed by one or two people (but not notarized).75 Four states have statutes that permit the writing to be either notarized or witnessed.76

2. Designated Agent Statutes

The vast majority of states have a statute that determines who shall take custody and control of remains. The right to take possession of remains and make decisions regarding their disposition is referred to in the common law, and some state statutes, as the “right of sepulture.”77 At the top of the priority list is typically the spouse, followed by children, parents, siblings, and so on. But the second group of statutes, the “designated agent” statutes, allow a decedent to designate a person other than the one with statutory priority to take custody and control of his remains after death. Presumably, a person would take advantage of a designated agent statute in order to choose a person who will be more likely than his next of kin to effectuate his wishes. The funeral industry also supports designated agent statutes. Forty-eight states and the District of Columbia have statutes that acknowledge that a decedent may appoint a designated agent in certain circumstances.78 Only Mississippi and South Dakota have no statutory language permitting a decedent to circumvent the statutory priority list.

Seven states and the District of Columbia have statutes with flexible language that permit any kind of writing to appoint an agent.79 Seven states have statutes that only permit a designated agent to be named in a durable power of attorney for health care.80 Thirty-four states have statutes that require that the document meet certain formalities such as witnesses, the signature of the agent, or a notary seal.81 As with personal preference statutes, the formalities these thirty-four states require vary widely.

IV. Modern Statutory Law Undermines the Rights of Decedents to Control Their Remains in Unintended and Unnecessary Ways

A. The Conflict of Laws Problem (You Can’t Control Where You Die)

Imagine that John Doe, domiciled in Chicago, Illinois, is widowed and estranged from his sole child, Jane. He recently updated his estate planning documents with his attorney and executed an “Appointment of Agent to Control Disposition of Remains” pursuant to Illinois law, naming his brother Sam as his designated agent.82 John signed and dated the document, and it was notarized. Subsequently, John traveled to Indianapolis, Indiana, as is his annual tradition, to attend the Indy 500. Sadly, John unexpectedly died while in Indianapolis. Will Sam have the authority under Indiana law to transfer his brother’s remains back to Chicago or make other arrangements for their disposition?

We must begin our analysis at John’s death. The death of any person in the State of Indiana must be reported within three hours.83 The coroner of the county in which the death occurred has the authority to investigate any unattended or suspicious deaths.84 A death certificate must then be filed by “the physician last in attendance upon the deceased or the person in charge of interment . . . with the local health officer of the jurisdiction in which the death or stillbirth occurred.”85 Human remains may not be removed from the county in which death occurred or disposed of before a burial transit permit is secured.86 The local health officer in the county in which the death occurred issues said permit after the physician files the death certificate.87

Title 25 of the Indiana Code, entitled “Professions and Occupations,” establishes the “priority of persons determining final disposition and interment of human remains.” The following statutory language is found within article 15, entitled “Embalmers and Funeral Directors,” and chapter 9, entitled “State Board of Funeral and Cemetery Service; Education Fund; Cemetery Registration”: “[T]he following persons, in the order of priority indicated, have the authority to designate the manner, type, and selection of the final disposition of human remains, to make arrangements for funeral services, and to make other ceremonial arrangements after an individual’s death.”88 First priority is awarded to a person “granted the authority to serve in a funeral planning declaration executed by the decedent under IC 29-2-19.”89

That chapter of the Indiana Code provides that “a person who is of sound mind and is at least eighteen (18) years of age may execute a funeral planning declaration substantially in the form set forth in section 13 of this chapter.”90 A funeral planning declaration may include the decedent’s preferences regarding the following arrangements:

  1. The disposition of the declarant’s remains after the declarant’s death.
  2. Who may direct the disposition of the declarant’s remains.
  3. Who may provide funeral services after the declarant’s death.
  4. The ceremonial arrangements to be performed after the declarant’s death.
  5. The merchandise that the declarant prefers for the disposition of the declarant’s remains and any ceremonial arrangements.
  6. Who may direct the ceremonial arrangements to be performed after the declarant’s death.
  7. A grave memorial.91

The declaration must meet certain criteria:

(1) Be voluntary; (2) Be in writing; (3) Direct an individual to serve as the declarant’s designee; (4) Be signed by the person making the declaration or by another person in the declarant’s presence and at the direction of the declarant; (5) Be dated; [and] (6) Be signed in the presence of at least two competent witnesses who are at least eighteen (18) years of age.92

A person in Indiana will be absolved of liability for relying upon authority granted by a document executed in another state provided that it “complies with the requirements of this chapter.”93 John’s “Appointment of Agent” document appears to fulfill criteria (1) through (5). However, it is notarized rather than witnessed. In addition, it should be noted that “[a] declaration may not be included in a will, a power of attorney, or a similar document.”94 A person who left disposition instructions in a will, as expressly permitted by statute in fifteen states, including Illinois, would clearly not comply with the requirements of the Indiana Code even if all six criteria were fulfilled.

Assume that both Jane and Sam contact whoever is in custody of John’s remains (the coroner, a hospital, or a funeral home) and assert that they both have the right to control John’s remains. Sam could assert control by virtue of the Appointment of Agent form executed by John, and Jane could assert control pursuant to the priority list contained in Indiana Code section 29-2-19-18, which gives custody to the decedent’s adult surviving child (or a majority of surviving adult children) if the decedent is unmarried and failed to execute a funeral planning declaration or health care power of attorney in compliance with Indiana law.

A funeral director, coroner, or hospital in Indiana, reading the laws cited above, could reasonably conclude that John’s Illinois document does not comply with the requirements of the Indiana Code and is therefore not a funeral planning declaration. Indeed, when faced with two people claiming custody of the remains, one under the law of the state of Illinois and one under the state of Indiana, a reasonable funeral director, coroner, or hospital would likely refuse to release the remains to either without a court order. It is unclear how a judge in Indiana would view the dispute, but there is no precedent in a reported appellate case in the United States that would support Illinois law over Indiana law if John died in Indiana and his remains are located in Indiana.

A person domiciled in Indiana would have the same problem if he or she died in Illinois. A funeral planning declaration executed under Indiana law, with two witnesses, would not satisfy the minimum criteria of the Illinois Disposition of Remains Act, which require the “Appointment of Agent” designation to be notarized.95

B. In the Matter of the Estate of Mary Florence Whalen, Deceased

The case of John Doe is not simply a theoretical problem, as the family of Mary Florence Whalen (Flo) discovered in 2013.96 The Whalen case illustrates the conflict between the common-law right of decedents to control the disposition of their remains and modern statutory law regarding the authority of persons to dispose of human remains, as well as the conflict between inconsistent state laws.97

Michael and Flo Whalen were married in Iowa in 1952 and moved to Billings, Montana in 1953.98 In 1996, the couple informally separated and Michael returned to Iowa.99 Flo moved to New Mexico in 2004 to be near one of their daughters.100 In 2009, Flo executed a last will and testament in New Mexico, which included a provision stating that she “direct[ed]” her body to be buried in a “moderately priced wooden coffin” in a grave that she had already purchased at Holy Cross Cemetery in Billings.101

Flo’s will named her sister, Mary Ann, as her personal representative and executor.102 In late 2011, Flo visited Iowa. She became ill and was unable to return to New Mexico.103 In April 2012, Flo wrote a letter in the presence of her son that was addressed to and delivered to her sister, her husband, and their ten adult children.104 The letter read in part:

I am writing this letter to all of you to let you know what I wish done with my earthly remains after my soul has gone hopefully upwards.

I wish to be buried in Billings, Montana which I considered my home when on earth. I spent 51 years of my life in Billings and with the help of my dear husband, raised 10 beautiful children there. I bought a plot many years ago in Holy Cross Cemetery in Billings, in which to be buried and have paid for the opening and closing of my grave. I also have bought a casket made by the [Trappist] Monks in Peosta, Iowa, and they will ship it wherever they are asked at the time they are informed to do so.

I know that you all love me and want to honor my final requests, and that is why I am writing this to you. I just want all of you to know that this is very important to me and because you all love and respect me I know that you will see that my wishes are carried out.105

Prior to Flo’s death, she visited a local funeral home in Anamosa, Iowa with her sister, Mary Ann, and one of her daughters.106 They were erroneously instructed by the funeral director that Iowa law provided that Michael, her husband, was the only person who could decide where Flo would be buried and that there was “nothing” she could do to change that.107

In fact, the 2008 Iowa Final Disposition Act includes a “designated agent” statute that permits a decedent to name a designated agent through a “declaration.”108 The designated agent has the “right to control final disposition of a decedent’s remains or to make arrangements for the ceremony after a decedent’s death.”109 If no person has been appropriately appointed as a designated agent, the right to control final disposition is determined by a statutory priority list.110 The person with the next highest priority is the surviving spouse of the decedent, if not legally separated from the decedent.111

The Iowa Final Disposition Act defines a “declaration” as a written instrument contained in or attached to a durable power of attorney for health care, which names a designee to control final disposition.112 The declaration is required to be witnessed by two people or notarized.113 In other words, when Flo was told by the funeral director that she could not ensure that her wishes were carried out, Iowa law provided that Flo could have executed a declaration under Iowa law naming her sister (or anyone else) as her designee.

The Iowa Final Disposition Act, however, specifically states that a declaration can only appoint a designee but “shall not include directives for final disposition of the [decedent’s] remains.”114 In other words, Iowa has a designated agent statute but no personal preference statute.

For the last six months of her life, Flo lived in her husband’s home in Anamosa, Iowa.115 She died on June 9, 2012.116 Following Flo’s death, Mary Ann returned to the local funeral home and asked the funeral director to transport Flo’s remains to Billings, Montana to be buried in the plot that she had purchased.117 Michael instructed the funeral director to bury his wife in a local cemetery in Anamosa.118 The funeral director refused to follow either party’s instructions and agreed to hold Flo’s remains pending a final court order regarding their disposition.119

Flo’s will was admitted to probate in Jones County, Iowa on June 22, 2012, and the court appointed Mary Ann as executor of the estate.120 Mary Ann moved for an order to have Flo’s remains transported to Montana for burial, per the decedent’s wishes as expressed in her will and the letter.121 Michael opposed the motion and asked for a ruling that he had the sole authority to control her remains pursuant to the Iowa Final Disposition Act.122 In a newspaper interview, Michael, then age 93, stated, “I wanted her to be buried in Iowa because she wanted to be buried here, and I loved her and she was my wife.”123 The probate court ruled in favor of Mary Ann, finding that

[A]ll evidence convincingly establishes that Mary Florence Whalen made the decision to have her remains buried in Billings, Montana, and she did not intend for anyone else to make that decision for her. Her intent could not be clearer. The Court’s statutory interpretation, when com-bined with the Court’s duty to see that Mary Florence Whalen’s wishes are carried out as to her final resting place and the Court’s deference to the testator’s wishes regarding the method and location of burial supports a conclusion that the Executor’s Motion should be granted.124

Michael appealed and the Supreme Court of Iowa accepted the appeal on expedited review.125

The basic question before the Supreme Court was whether the Iowa Final Disposition Act, which sets forth a clear procedure to allow a person to appoint a designated agent through a declaration, but which does not permit a person to set forth her preferences in the declaration, preempts the common law principle that decedents have the right to dictate the method and location of the disposition of their remains.126 Similar to the common law in other states, Iowa courts have consistently held that “the duty of courts [is] to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out.”127

The court succinctly stated the issue before it: “The dispute in this case turns on whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the decedent’s will directing disposition of her bodily remains.”128 Mary Ann argued that the Iowa statutes are only relevant on this point if the decedent did not clearly express her wishes.129 In a case where the decedent did clearly express them, those wishes should supercede the contrary intentions of a surviving spouse or other person with statutory authority to control the body.130 In other words, Mary Ann argued that the paramount concern in harmonizing the common and statutory laws should be effectuating the decedent’s intent and the statute should simply be a mechanical method of choosing the person to implement that intent. In the alternative, Mary Ann argued that Flo’s will should function as a declaration under Iowa law and have the effect of appointing her as the designated agent.131

In a split decision, the Supreme Court of Iowa rejected Mary Ann’s reasoning, concluding that the Iowa Final Disposition Act preempted any conflicting common law.132 The court also rejected Mary Ann’s argument that Flo’s New Mexico will should function as a declaration under Iowa state law because it was not attached to a durable health care power of attorney as explicitly required by the Iowa statute.133 The court noted:

[T]he legislature nowhere required enforcement of the decedent’s wishes in the 2008 enactments. To the contrary . . . the 2008 legislature removed a related statutory provision that specifically gave the decedent control over disposition of his or her remains and substituted language giving sole control to the decision maker identified under section 144C.5. The legislature also rejected proposed language that would have required designees to effectuate decedents’ instructions.134

After a review of legislative history, the Iowa Supreme Court concluded that “[the Iowa Final Disposition Act] reflects that the legislature made a deliberate policy choice to favor clarity and certainty over ability of persons to control the final disposition of their own bodies.”135 It appears that the legislative history of the Iowa Final Disposition Act did not fully communicate the purpose of the statute to the Iowa Supreme Court. In fact, the purpose of the Act appears to have been to strengthen the common law right for decedents to control the disposition of their remains.

In 2008, the Iowa legislature considered two versions of the Final Disposition Act: SF 473 and HF 2088. The Senate version, SF 473, was the product of a working group, including approximately 30 stakeholders including the Iowa Insurance Division, the Iowa Department of Elder Affairs, the Iowa Attorney General’s Office, the Iowa Department of Public Health, and the Iowa Bar Association.136 Although the Iowa Funeral Directors Association participated in early meetings to draft SF 473, it eventually parted ways with the working group and proposed an alternative: HF 2088.137 The Iowa legislature ultimately adopted the Senate version. Joel Greer, the president of the Iowa State Bar Association, explained the purpose of the bill to the Des Moines Register in February 2008: “The idea is to allow the person who’s going to die to decide. You get to decide who gets your kids, who gets your money, who gets your car [and also should control what happens to your remains].”138

The Iowa Bar Association lobbied for SF 473 because “Iowa lawyers would be able to advise their clients with certainty as to what steps they could take to ensure their bodies are disposed of according to their wishes.”139 In other words, the purpose of the bill was to reinforce the common law right, not to weaken it.

However, the Iowa Funeral Directors Association championed the other bill, clearly thinking that the common law right should be erased.140 HF 2088 began with the following words:

A funeral director licensed pursuant to this chapter or operator of a cremation establishment licensed pursuant to this chapter shall consult with and may reasonably rely upon an authorized person when making funeral arrangements for a decedent including but not limited to embalming, cremation, funeral services, and the disposition of human remains.141

Certainty and absolution from liability were the clear legislative goals of the Iowa funeral directors. A legislative update from the Iowa Bar Association starkly differentiated between the house and senate proposals:

HF 2088 . . . gives a funeral director or operator of a cremation establishment leeway to not follow the wishes of the decedent. Section 1 of HF 2088 states that the funeral director or operator of a cremation establishment “shall consult with and may reasonably rely upon an authorized person when making funeral arrangements for a decedent . . . .”

Unlike SF 473, HF 2088 does not require the funeral director and “authorized person” to follow the directives of the decedent concerning their funeral/burial decisions. SF 473, in contrast, makes a decedent’s written declaration legally binding upon the survivors and the designee. SF 473 will ensure that individuals can truly determine during their lifetime how their body/remains will be disposed of after their death.142

Eliminating any doubt about their view of the right of decedents to control the disposition of their remains, a letter to the editor by the executive director of the Iowa Funeral Directors Association clarified the industry’s view of funerals: “Iowa funeral directors have always believed funerals are about loved ones gathering to commemorate the deceased person’s memory. Funeral ceremonies are not about the dead forcing their intentions on loved ones.”143

The Iowa Funeral Directors Association similarly criticized the designated agent statute contained in SF 473: “Funeral directors bring families together to decide how to remember the dead. SF 473, backed by the Iowa State Bar Association, allows a ‘final disposition directive,’ which forces everyone to listen to a document, and not to the emotional needs of survivors.”144

Although SF 473 was adopted and became the Iowa Final Disposition Act, it did not operate in the Whalen case as either the Iowa State Bar Association or the Iowa Funeral Directors Association anticipated. Flo was not able to ensure that her wishes were carried out; the funeral director was not able to bring the Whalen family together to commemorate Flo’s life and satisfy the emotional needs of her survivors.

“Unless Michael voluntarily permits Flo’s burial in Montana, our decision will leave her wishes unfulfilled,” the court concluded.145 “If Flo had properly designated her sister pursuant to chapter 144C, Flo’s remains would be buried in Montana today.”146 Although decisions regarding the disposition of human remains have been traditionally heard at equity, the court did not discuss the equities involved with the funeral director’s misstatement of Iowa law to Flo and Mary Ann, nor the fact that Michael is an attorney who was in a better position to know Iowa law than his wife or her sister. The court seemed sympathetic to Flo and hoped that her husband would defer to her clear wishes, but it held that decedents may only appoint a designated agent if they strictly adhere to the formalistic requirements of the statute.147

The chief justice of the Supreme Court of Iowa dissented, concluding that “[t]he Act is totally independent of the autonomy of a person to make his or her own decision prior to death. The legislature sought only to resolve disputes that occur when a decedent leaves no directions behind, not deprive decedents of the right to make the decisions.”148 He referred to the common law right to dictate the disposition of one’s own remains as “timeless and fundamental.”149

C. Shortcomings of the Statutory Regimes

The Whalen case illustrates several key problems caused by personal preference and designated agent statutes.

First, the Whalen case demonstrates the problems caused by (1) the lack of uniformity between state requirements and (2) the fact that the law of the state in which persons die appears to govern the disposition of their remains.150 Flo lived for most of her adult life in Montana and New Mexico. She executed her will in New Mexico, where she had lived for more than a decade before her death. As Mary Ann noted in her brief, Montana and New Mexico both have statutes that likely would have enforced Mrs. Whalen’s instruction in her will or her letter.151 Unfortunately for Flo and her family, she died in a state that had different formalistic requirements. Unless we never leave home, we cannot control where we die and cannot reasonably make arrangements for death in all fifty states.

Only a handful of states recognize that the problem may arise where a decedent executes a personal preference or designated agent document under the law of a different state, but they handle that conflict in different ways. As discussed in the context of John Doe’s hypothetical death, Indiana law affirmatively states that Indiana should honor a document created in another state if it complies with the formalities of Indiana law.152 Delaware’s statute takes a similar approach.153 Kentucky’s statute takes a slightly different approach, stating that “[a] person in Kentucky is not required to honor a declaration or similar instrument executed in another state, but may rely on a declaration or similar instrument executed in another state that complies with the requirements of KRS 367.93101 to 367.93121.”154 In other words, in Kentucky, a coroner, hospital, or funeral director is under no obligation to honor a declaration executed in another state but has the discretion to do so if it meets the formalities of Kentucky law.

When contemplating the effectiveness of statutes like those in Indiana and Delaware, it is useful to remember what happened in Iowa. A statute enacted with the Iowa Final Disposition Act in 2008 reads as follows:

A declaration or similar instrument executed in another state that complies with the requirements of this chapter may be relied upon, in good faith, by the designee, an alternate designee, and a third party in this state so long as the declaration is not invalid, illegal, or unconstitutional in this state.155

There was no argument that Flo’s will was invalid, illegal, or unconstitutional in Iowa.156 But Flo’s husband argued in his brief that this statute did not permit the court to honor Flo’s wishes, as expressed in her will:

Pursuant to Iowa Code section 144C.2(8), a “[d]eclaration” means a written instrument, contained in or attached to a durable power of attorney for health care . . . .” Iowa Code § 144C.2(8) (2012). These provisions were duly considered and enacted by the Legislature. The result was the Legislatures [sic] conscious and unequivocal determination that the surviving spouse of a decedent controls final disposition unless a designee was made subject to the above express requirements—a declaration, without directives, attached to a durable power of attorney, not a will. Mary Flo did not execute a declaration or similar instrument that remotely complies with the express requirements of chapter 144C, and, therefore, Michael Whalen has the right to control final disposition of her remains.157

It would seem logical for states to treat personal preference and designated agent declarations the same way that they treat wills, by adopting statutes that promise to honor them if they comply with the law of the state of the decedent’s domicile. But unlike probate law, there is still considerable disagreement among the states regarding whether it is appropriate to allow decedents to appoint designated agents or determine the disposition of their own remains. It seems unlikely that South Carolina, for example, which only permits decedents to pre-authorize cremation but make no other choices, would readily agree to honor the declarations executed in states that permit more decedent control.158

The second problem highlighted by the Whalen case and the Iowa Final Disposition Act is the difference of world view between the funeral industry and the state bar. Are funerals for the living or are they for the dead? The legislatures must decide this policy question, if they choose to wade into these issues. We have, as a society, largely ceded control over the statutory law of human remains to the experts, the funeral industry. The fundamental problem with the industry’s involvement in crafting the laws for its own purposes, no matter how valid those purposes may be, is that the perspective of the funeral industry is in conflict with the common law right that decedents may control the disposition of their remains. Like the Iowa funeral director stated, “[f]uneral ceremonies are not about the dead forcing their intentions on loved ones.”159 Thomas Lynch, second-generation funeral director and poet, captures the perspective of funeral directors when he honestly and eloquently explained, “the dead don’t care.”160

[T]his is the central fact of my business—that there is nothing, once you are dead that can be done to you or for you or with you or about you that will do you any good or any harm; that any damage or decency we do accrues to the living, to whom your death happens, if it really happens to anyone. The living have to live with it. You don’t. Theirs is the grief or gladness your death brings. Theirs is the loss and the gain of it. Theirs is the pain and the pleasure of memory. Theirs is the invoice for services rendered and theirs is the check in the mail for its payment.161

The role and perspective of the Iowa Funeral Directors Association was clear in the drafting of the Iowa Final Disposition Act. Although there has been no formal uniform law effort on these issues, industry groups such as the National Funeral Directors Association (NFDA) have advised state legislatures to adopt statutes that conform to their model guidelines.162 Understandably, the NFDA’s position is that “ideally, a state should have a law that clearly maps out how to settle a dispute” without the involvement of a court.163 The NFDA began grading state laws in 1999 and formally encourages members to lobby their state legislatures to adopt NFDA model laws.164 The NFDA developed two model right of disposition laws that were recently used by the state legislatures in Alabama, Arkansas, Georgia, Montana, New Hampshire, Ohio, Texas, and Wisconsin to revise their own laws.165

The NFDA provides the NFDA Policy Board and state industry leaders with the Right of Disposition Report Card, which analyzes whether each state addresses eight issues.166 The first, and most fundamental issue, is what the NFDA calls “Decedent Control of Disposition.”167 The NFDA’s position is that state statutes should solidify the common law rules that decedents should control the manner and place of the disposition of their remains (that is, personal preference statutes).168 However, by the NFDA’s count, forty-nine states have “one or more provisions in their right of disposition laws to allow an individual to control his or her disposition following death.”169 By my count, the number is forty-two, and those statutes lack meaningful enforcement mechanisms.170

The NFDA also desires states to adopt statutes that allow funeral directors to rely on the representations of family members regarding their status and right to control remains. Similar to the rationale with respect to missing relatives, funeral homes desire the ability to rely upon a relative’s representation that he or she has the authority to dispose of remains without requiring the funeral home to independently verify claims through birth records and marriage licenses. For example, the NFDA general counsel told the audience at an industry conference:

Someone fills out that cremation authorization form, saying he or she has superior rights because he or she is an only child. You go ahead and cremate the body, but lo and behold, a week later, a daughter calls who you didn’t know existed and says she is going to sue you because you cremated her mother without her permission. This statute is going to give you protection because it says you can rely on something that is written and signed if you had no reason to know it was untrue.171

By the NFDA’s count, forty states offer this liability shield.172

Finally, the NFDA desires statutes that provide funeral directors with immunity from disciplinary measures. “An effective right of disposition law provides immunity from civil, criminal, and administrative disciplinary measures” if funeral homes follow the instructions of those who claim to hold the right of disposition.173 The NFDA notes, “this is one area where you might get some opposition, and that is from trial lawyers.”174

Since the first Report Card in 2011, eleven states have used the NFDA’s model laws to change their laws and one state adopted its first right of disposition law based primarily on the NFDA model.175 Other industry groups have their own model guidelines, which are similar to the NFDA model law.176

The NFDA’s Report Card and statements by its general counsel emphasize the industry’s interests in a quick and certain determination of the person with legal rights to control the disposition and limit the liability of funeral homes. The NFDA general counsel told an industry gathering that convincing state legislatures to adopt the model law “is a pretty easy legislative sell. You don’t get a lot of pushback [or] opposition. . . . A lot of times, consumer groups see it as giving the individual the right to control their disposition, and they recognize that as a benefit.”177 Statutes that follow the approach favored by the industry result in some fairly predictable problems for decedents and their families, many of which are illustrated by the Whalen case.178

First, as illustrated by the John Doe hypothetical and the Whalen case, many state statutes cause unnecessary problems due to their strict formalistic requirements. There are two categories of state statutes that malfunction in this manner: (1) those that restrict the ways in which decedents can designate agents or that do not permit agent designation, and (2) those that restrict how decedents can express their intent.

Many state statutes, like Iowa’s, are brightline rules that require a designated agent be appointed in a particular way or require decedents to express their intent in a particular way. This process works well for decedents who were represented by competent counsel. It does not work so well for decedents who did not have counsel, or who were misinformed about legal requirements. A less formalistic approach would not raise these social justice issues because it would not disadvantage decedents without sufficient resources to be represented by counsel.

A common argument in favor of bright line rules rather than equitable rules is that while the latter may achieve more perfect, individualized justice, they consume more resources. The Whalen case, however, demonstrates that bright line rules can be problematic if they run contrary to established social norms and expectations. In addition to the emotional trauma, the estate, the family, and the state spent significant resources while the matter was litigated. In addition to the legal fees and judicial resources, Flo’s remains were kept by the local funeral director for months at an unknown daily charge.179 Flo had pre-purchased a cemetery plot and casket.180 The Iowa Supreme Court did not discuss whether the casket would be used, or the public policy justification for requiring Flo’s estate to pay for a second cemetery plot.181

V. Conclusion

Although modern statutory regimes were intended to reduce uncertainty and thus litigation, they have actually increased uncertainty by conflicting with the social norms and expectations set by longstanding common law principles that permit decedents to determine the place and manner of disposition of their own remains, and by enacting overly formalistic requirements that conflict with those in other states and that largely fail to address the inconsistencies from state to state. In the Whalen case, Mary Ann argued that the Iowa statutes were designed only to address situations in which the decedent had not exercised his common law right to leave instructions regarding his remains.182 The majority of the Supreme Court of Iowa disagreed based on its reading of the legislative history, but it conceded that the Iowa legislature never clearly stated that it intended the Iowa Final Disposition Act to take away the common law right of decedents.183 This tension is echoed in other states. The law of the dead receives little attention from scholars and legislators. It is not surprising that there are disconnects between the common law and statutory law, disconnects that have real consequences for families like the Whalens.

This is a problem best addressed by a uniform law.

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Endnotes

1. But see Matthew H. Kramer, Do Animals and Dead People Have Legal Rights?, XIV Canadian Journal of Law and Jurisprudence 29, 47 (2001) (“Even if one feels that the interests of dead people should be given scanty legal protection, one ought to accept that any legal obligations which do noncontingently confer protection on those interests have thereby conferred legal rights on the dead.”).

2. See also Ray D. Madoff, Immorality and the Law: The Rising Power of the American Dead 6 (2010) (“The American legal system has made choices regarding rights of the dead that differ significantly from those made by other countries.”).

3. See In re Estate of Dunson, 141 So. 2d 601, 604 (Fla. Dist. Ct. App. 1962) (“The right to dispose of one’s property through the instrumentality of a will is highly valuable, and it is the policy of the law to hold a will good wherever possible.”); In re Estate of Foss, 202 A.2d 554, 558 (Me. 1964) (“The power of devising by will has been termed a legal incident to ownership and one of the most sacred rights attached to property.”); Eardley Mitford, The Law of Wills, Codicils and Revocations B2 (1860) (“All persons [are permitted by the laws of England] to dispose of their property by will, unless under some special prohibition . . .”).

4. David Horton, Testation and Speech, 101 Geo. L. J. 61, 63 (2012); see also Joshua C. Tate, Caregiving and the Case for Testamentary Freedom, 42 U.C. Davis L. Rev. 129, 137–38 (2008) (“In the United States, the basic rule is that a parent can disinherit a child or grandchild for any reason or no reason. . . . The approach of the United States contrasts sharply with those of civil law and Commonwealth jurisdictions around the world.”).

5. In re Caruthers’ Estate, 151 S.W.2d 946, 948 (Tex. Civ. App. 1941).

6. See John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L. Rev. 489, 490 (1975).

7. See Marvin B. Sussman, Judith N. Cates & David T. Smith, The Family and Inheritance 23 (1970) (“American law controlling the execution of wills is derived from three English statutes: Statute of Wills (1540), Statute of Frauds (1677), and the Wills Act (1837).”).

8. 2 William Blackstone, Commentaries on the Laws of England 499–500 (1765).

9. The practice of using the will to direct the disposition of one’s remains is longstanding in the Anglo-American legal tradition. See, e.g., Sir John Comyns, A Digest of the Laws of England, Volume VII Y3 (1822) (noting that a man “may prescribe, that he is tenant of an ancient messuage, and ought to have separate burial in such a vault within a church” and that a man “may be his will appoint his burial at such a monastery, &c. as he pleases.”).

10. See, e.g., The Works of Francis Bacon, Baron of Verulam, Viscount St. Alban, and Lord High Chancellor of England, Volume II 610 (1753) (“For my burial, I desire it may be in St. Michael’s church near St. Albans: there was my mother buried, and it is the parish church of my mansion house of Gorhambury, and it is the only Christian church within the walls of Old Verulam. I would have the charge of my funeral not to exceed three hundred pounds at the most.”); Last Will and Testament of Benjamin Franklin, Living Tr. Network, http://livingtrustnetwork.com/estate-planning-center/last-will-and-testament/wills-of-the-rich-and-famous/last-will-and-testament-of-benjamin-franklin.html, “I wish to be buried by the side of my wife, if it may be, and that a marble stone, to be made by Chambers, six feet long, four feet wide, plain, with only a small moulding round the upper edge, and this inscription: Benjamin And Deborah Franklin 178- to be placed over us both.”).

11. See, e.g., Cottingham v. McKee, 821 So. 2d 169, 172 (Ala. 2001) (“[I]f a testator unambiguously expresses in his will how his body is to be disposed of, it is incumbent upon the executor and the court to honor the testate’s wishes.”); Estate of Jimenez v. Jimenez, 65 Cal. Rptr. 2d 710, 714 (1997) (“It is recognized that the individual has a sufficient proprietary interest in his own body after his death to be able to make valid and binding testamentary disposition of it.” (quoting O’Donnell v. Slack, 123 Cal. 285, 288–89, 55 P. 906, 907 (1899))); Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005) (“Where the testator has expressed his exclusive intention through the will, the testator’s wishes should be honored.”); In re Estate of Moyer, 577 P.2d 108, 110 (Utah 1978) (“[A] person has some interest in his body, and the organs thereof, of such a nature that he should be able to make a disposition thereof, which should be recognized and held to be binding after his death, so long as that is done within the limits of reason and decency as related to the accepted customs of mankind. . . . [An] executor under a will has a right and a duty to carry out any such reasonable and proper directions.”).

12. See, e.g., O’Donnell v. Slack, 55 P. 906, 907 (Cal. 1899) (“The court in probate and the personal representative acquire jurisdiction from the last testament to see that its provisions in this regard [i.e., directing how to dispose of the testator’s body], as in all others, are duly executed.”); Tkaczyk v. Gallagher, 222 A.2d 226, 228 (Conn. Super. Ct. 1966) (“A person’s expressed wish or direction as to the disposal of her body after death is entitled to respectful consideration by the court and should be carried out as far as possible.”); Wales v. Wales, 190 A. 109, 110 (Del. Ch. 1936) (“That the desires of the deceased person are to be accorded great weight upon the question of the burial of his body, cannot be questioned in the light of the cases.”); Kitchen v. Wilkinson, 26 Pa. Super. 75, 77 (Pa. Super. Ct. 1904) (“The right of burial exists therefore in favor of the body of Ralph J. White . . . .”).

13. See Madoff, supra note 2, at 12 (“Nothing is more quintessentially ‘ours’ than our bodies. We may have nothing in the world, but we all have a body in which we live.”).

14. See generally Tanya D. Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327, 1328 (2013).

15. There has been tangential uniform law activity, including the Uniform Probate Code, the Uniform Trust Code, and the Uniform Anatomical Gifts Act, but nothing focused on the disposition of human remains other than in the context of anatomical gifts.

16. See, e.g., Arthur v. Milstein, 949 So. 2d 1163, 1163 (Fla. Dist. Ct. App. 2007) (analyzing who received custody of the remains of Anna Nicole Smith, who died in a Florida hotel room; Ms. Smith apparently was not a resident of Florida, but the court did not question whether Florida law applied to the disposition of her remains).

17. See Percival E. Jackson, The Law of Cadavers 28 (Prentice-Hill, Inc., 2d ed. 1950).

18. See id. at 20–23; see also Marsh, supra note 14, at 1329–31.

19. See Jackson, supra note 17, at 22; Marsh, supra note 14, at 1329.

20. See generally Richard Burn, The Ecclesiastical Law, Vol. I (9th ed. 1842); see also Jackson, supra note 17, at 25. This split of authority continued until the passage of the first of the English burial acts by Parliament in 1852. See id.

21. Jackson, supra note 17, at 22.

22. See Property in Dead Bodies, 6 Alb. L. J. 151, 152 (1872).

23. See id.

24. See, e.g., R v. Coleridge, [1819] 106 Eng. Rep. 559, 559 (“The mode of burying the dead is a matter of ecclesiastical cognizance.”); John Anthony O’Reilly, Ecclesiastical Sepulture in the New Code of Canon Law 1 (1923) (“The reverence, disposition and deposition of the bodies of the faithful departed, Holy Mother Church considers an integral and important feature of our holy religion. . . . [T]he Church in her codification of regulations and discipline, has in every age given due prominence and attention to the various matters which bear on ecclesiastical sepulture.”).

25. As a technical matter, title to the church and churchyard was vested in the incumbent. See Burn, supra note 20, at 1.

26. See Property in Dead Bodies, supra note 22, at 153.

27. See The Book of Common Prayer (1662) (“[W]e therefore commit his body to the ground; earth to earth, ashes to ashes, dust to dust; in sure and certain hope of the Resurrection to eternal life, through our Lord Jesus Christ; who shall change our vile body, that it may be like unto his glorious body, according to the mighty working, whereby he is able to subdue all things to himself.”).

28. See Jackson, supra note 17, at 23.

29. See id. at 34.

30. See id. at 22–23.

31. See id. at 25–26.

32. See In re Sheffield Farms Co., 126 A.2d 886, 890 (N.J. 1956) (“From a very early date in England the ecclesiastical courts had exclusive jurisdiction of the dead . . . . With the repudiation of the ecclesiastical courts in the American colonies, jurisdiction over these matters passed to the temporal courts.”); In re Widening of Beekman Street, 4 Bradf. Sur. 503, 526 (N.Y. Sur. Ct. 1856) (“Burial, in the British Islands, may possibly remain, for many generations, subject exclusively to ecclesiastical cognizance; but in the new, transplanted England of the Western continent, the dead will find protection, if at all, in the secular tribunals, succeeding, by fair inheritance, to the primeval authority of the ancient, uncorrupted common law.”).

33. See, e.g., Samuel B. Ruggles, An Examination of the Law of Burial in a Report to the Supreme Court of New York 43 (D. Fanshaw 1856). Mr. Ruggles, the author of one of the foundational documents in the U.S. law of human remains, the so-called “Ruggles Report,” made the case that the law of sepulture should fall under the authority of American “secular courts of justice.” He wrote:

The dead, deprived of the legal guardianship, however partial, which the church so long had thrown around them, and left unprotected by the civil courts, will become, in law, nothing—but public nuisances; and their custody will belong only to the guardians of the public health, to remove and destroy the offending matter, with all practical economy and dispatch.

Id. at 43–44; see also 4 Brad. Sur. at 521–22.

34. Wightman v. Wightman, 4 Johns. Ch. 343, 347 (N.Y. Ch. 1820); see also Peter Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, 74 S. Cal. L. Rev. 1479 (2001).

35. Beatty v. Kurtz, 27 U.S. 566, 585 (1829) (“[In the event of an interference with the sepulchers of the dead,] [t]he remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead, and the religious sensibilities of the living.”).

36. See James T. R. Jones, Evidentiary Autopsies, 61 U. Col. L. Rev. 567, 570 (1990); see also Brownlee v. Pratt, 68 N.E.2d 798, 800–01 (Ohio Ct. App. 1946) (“The policy of the law to protect the dead and preserve the sanctity of the grave comes down to us from ancient times, having its more immediate origin in the ecclesiastical law. This salutary rule recognizes the tender sentiments uniformly found in the hearts of men, the natural desire that there be repose and reverence for the dead, and the sanctity of the sepulcher.”); Joseph Story, An Address Delivered on the Dedication of the Cemetery at Mount Auburn 6 (Sept. 24, 1831) (Joseph T. & Edwin Buckingham eds. 1831), https://babel.hathitrust.org/cgi/pt?id=hvd.ah23b9&view=1up&seq=11 (citing the Old Testament story of Abraham, Isaac, and Jacob’s family tomb to illustrate “universal” feelings and practices).

37. See Tanya D. Marsh, Regulated to Death: Occupational Licensing and Demise of the U.S. Service Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018).

38. In 1882, the Undertakers’ Mutual Protection Association was renamed the National Funeral Directors Association because the title of “funeral director” was perceived to be more professional than “undertaker.” See Ronda Smith, The American Death System 27 (Dec. 9, 1997) (unpublished project for partial fulfillments of M.A. requirements, Sonoma University) (on file with Sonoma State University Library, Sonoma State University). In 1898, Carl Lewis Barnes, the President of the Chicago College of Embalmers, wrote, “If I should be asked what constitutes a funeral director, I would answer, ‘A thorough gentleman.’ One who has the skill of the anatomist, the nerve of the surgeon, the untiring patience and ingenuity of the chemist; in all, a broad-minded, well-informed man.” Carl Lewis Barnes, The Art and Science of Embalming 361 (1898).

39. See Robert W. Habenstein & William M. Lamers, The History of American Funeral Directing 291–325 (8th ed. 2014). Virginia was the first state to enact a law regulating embalming in 1894. See id. at 322; see also David Foos, State Ready-to-Embalm Laws and the Modern Funeral Market: The Need for Change and Suggested Alternatives, 2012 Mich. St. L. Rev. 1375, 1387 (2012). Over the next six years, nearly half of the states enacted similar laws. See Habenstein & Lamers, supra at 322.

40. A major exception is the Federal Trade Commission’s “Funeral Rule.” See 16 C.F.R. § 453.2. Adopted in 1984, the Funeral Rule was intended as a consumer-friendly measure. It requires “funeral providers” to maintain a general price list and to itemize all charges. Id. All state statutory citations in this Article refer to the current statute unless otherwise indicated. The same applies to state regulations and ordinances.

41. Colorado does not license individual funeral directors, but a law that went into effect on January 1, 2010 requires the licensure of funeral establishments and prohibits people from offering funeral goods or services to the public unless they work for a licensed funeral establishment. See Colo. Rev. Stat. § 12-54-110(1). Hawai’i also requires the licensure of embalmers, but not funeral directors. Haw. Rev. Stat. §§ 469-1–8 (stating that section 469-2 authorizes the Department of Health to establish rules for the “business of an undertaker” and to require the registration of those engaged in that business, but does not authorize any licensing regime for funeral directors or undertakers).

42. See, e.g., N.C. Gen. Stat. § 90-210.20(k) (“‘Practice of funeral service’ means engaging in the care or disposition of dead human bodies or in the practice of disinfecting and preparing by embalming or otherwise dead human bodies for the funeral service, transportation, burial or cremation, or in the practice of funeral directing or embalming as presently known, whether under these titles or designations or otherwise. ‘Practice of funeral service’ also means engaging in making arrangements for funeral service, selling funeral supplies to the public or making financial arrangements for the rendering of such services or the sale of such supplies.”).

43. See David E. Harrington, Markets: Preserving Funeral Markets with Ready-to-Embalm Laws, J. Econ. Persps., Fall 2007, at 202. “Funeral directing” is generally defined by state statutes as including the following services: removing the corpse from the place of death or coroner’s office, preparing the remains (washing, embalming, dressing, and applying cosmetics), arranging the logistical details of the funeral and final disposition (which could include a range of services such as hosting a viewing, coordinating with the crematory or cemetery, and placing an obituary in the paper), and selling related products and services to the family. See Mass. Gen. Laws 112 § 82; Neb. Rev. Stat. § 38-1410.

44. See Lisa Carlson, Caring for the Dead 11 (1998); Jessica Mitford, The American Way of Death 261–63 (1963); Int’l Cemetery, Cremation, and Funeral Ass’n, ICCFA Speaking For You, http://www.iccfa.com/legal/pac/ (“Congress looks to us when an expert on our industry is needed.”).

45. See, e.g., Fla. Stat. § 497.609 (2019); Tex. Health & Safety § 716.204 (2019).

46. See supra note 24 and accompanying text.

47. See Jackson, supra note 17, at 42 (“The ancient Greeks and Romans were particular to carry out the directions of the deceased respecting the disposition of his body.”).

48. John H. Corwin, Burial Law, 39 Alb. L. J. 196, 197 (1889).

49. 3 Herbert Thurston, Christian Burial, in The Catholic Encyclopedia 1, 1 (Vol. 3 1908).

50. See Jackson, supra note 17, at 44 (observing cremation should not conducted if the decedent did not request it because “he is otherwise deprived of his right ‘to Christian burial in the accustomed form in a consecrated burial ground.’”).

51. See R v. Price, 12 QBD 247 (1884).

52. Tanya D. Marsh, The Law of Human Remains 5 (2015).

53. See James Brooke Little, The Law of Burial 17–18 (1902) (“Every parishioner and inhabitant of a parish has a common law right to be buried in his parish churchyard or burial ground. It is also stated that by the custom of England every person may be buried in the churchyard of the parish where he dies.”).

54. See Tanya D. Marsh, Life After Death: Americans are Embracing New Ways to Leave Their Remains, The Conversation (Oct. 27, 2017), https://theconversation.com/life-after-death-americans-are-embracing-new-ways-to-leave-their-remains-85657.

55. Wood v. E.R. Butterworth & Sons, 118 P. 212, 214 (Wash. 1911) (holding that a man should be buried in South Dakota, consistent with his wishes, rather than Seattle, as his widow preferred).

56. See Fidelity Union Tr. Co. v. Heller, 84 A.2d 485, 487 (N.J. Super. Ch. 1951) (“The general rule is that although not essentially testamentary, and legal compulsion may not attach to them, the wishes or directions of a decedent as to his interment are entitled to respectful consideration and have been allowed great weight. It always has been, and ever will continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out.”) (internal citations omitted).

57. Williams v. Williams, L.R. 20 Ch. D. 659 (1881–82); see also In re Brick Presb. Church, 3 Edw. Ch. 155, 168 (N.Y. Ch. 1837) (citing Lord Edward Coke, “The heir has a right of property in the monuments and escutcheons of his ancestors; and may bring an action against those who take or deface them. But the heir has no right of property in the bodies or ashes of his ancestor and can bring no civil action against those who may indecently violate and disturb their remains when buried. And yet the property in the shroud and winding-sheet are in the executor or other person who was at the charge of the funeral; and a stealing of it will be felony.”).

58. See Cottingham v. McKee, 821 So. 2d 169, 172 (Ala. 2001); Estate of Jimenez v. Jimenez, 65 Cal. Rptr. 2d 710, 714 (1997); Cohen v. Guardianship of Cohen, 896 So. 2d 950, 953 (Fla. Dist. Ct. App. 2005); In re Estate of Moyer, 577 P.2d 108, 110 (Utah 1978).

59. See infra Part IV.

60. See Ala. Code § 34-13-11(a)(2)(b); Alaska Stat. § 13.75.010(a), (b); Ariz. Rev. Stat. Ann. § 36-831-01(A); Ark. Code Ann. § 20-17-102(b)(1); Cal. Health & Safety Code § 7100.1(a); Colo. Rev. Stat. § 15-19-104.5; Conn. Gen. Stat. § 45a-318(a)(1); Del. Code Ann. tit. 12, § 265; D.C. Code § 3-413; Fla. Stat. § 497.002(2); Ga. Code Ann. § 31-21-7(a); Haw. Rev. Stat. § 531B-3; Idaho Code § 54-1139; 755 Ill. Comp. Stat. 65/40; Ind. Code § 29-2-19-8(a); Kan. Stat. Ann. § 58-629(c); Ky. Rev. Stat. Ann. § 367.93103; La. Stat. Ann. § 8:655(A); Me. Stat. tit 22, § 2843-A-5; Md. Code Ann., Health-Gen. § 5-509(a); Minn. Stat. § 149A.80.1; Miss. Code Ann. § 73-11-58(1); Miss. Code Ann. § 73-63-25; Mont. Code Ann. § 37-19-903; Neb. Rev. Stat. § 30-2223(1); N.H. Rev. Stat. Ann. § 290:20; N.M. Stat. Ann. § 24-12A-1(A); N.Y. Public Health Law § 4201.2(c); N.C. Gen. Stat. § 130A-420(a)-(a2); N.D. Cent. Code § 23-06-03.7; Okla. Stat. tit. 21, § 1151(A); Or. Rev. Stat. § 97.130(1); 20 Pa. Cons. Stat. § 305(a); 5 R.I. Gen. Laws § 5-33.2-24; S.C. Code Ann. § 32-8-315(A); S.D. Codified Laws § 34-26-1; Tenn. Code Ann. § 62-5-702; Tex. Health & Safety Code § 711.022(g); Utah Code Ann. § 58-9-601; Vt. Stat. Ann. tit 18, § 9712(a); Wash. Rev. Code Ann. § 68.50.160(1); W. Va. Code Ann. § 30-6-22(a); Wis. Stat. § 154.30(8); Wyo. Stat. Ann. § 2-17-101.

61. See Ariz. Rev. Stat. Ann. § 36-831.01; Fla. Stat. § 497.002(2); Kan. Stat. Ann. § 58-629(c); N.Y. Public Health Law § 4201.2(c); Okla. Stat. tit. 21, § 1151; S.D. Codified Laws § 34-26-1.

62. Fla. Stat. § 497.002.

63. Ark. Code Ann. § 20-17-102(b).

64. See Ga. Code Ann. § 31-21-7(a); Haw. Rev. Stat. § 531B-3; Idaho Code § 54-1139; 755 Ill. Comp. Stat. 65/40; Md. Code Ann., Health-Gen. § 5-509(a); 239 Mass. Code Regs. 3.09; Miss. Code Ann. § 73-11-58(1); Mont. Code Ann. § 37-19-903; Neb. Rev. Stat. § 30-2223(1); N.C. Gen. Stat. § 130-420; N.D. Cent. Code § 23-06-03.7; Okla. Stat. tit. 21, § 1151; Or. Rev. Stat. § 97.130(1); 5 R.I. Gen. Laws § 33.2-24; S.C. Code Ann. § 32-8-315 (cremation only); Tenn. Code Ann. § 62-5-702; Tex. Health & Safety Code § 711.022(g); Vt. Stat. Ann. tit 18, § 9712; Wash. Rev. Code Ann. § 68.50.160; W. Va. Code Ann. § 30-6-22(a).

65. See Idaho Code § 54-1139; 5 R.I. Gen. Laws § 33.2-24; S.C. Code Ann. § 32-8-315 (cremation only).

66. See Ind. Code § 29-2-19-11.

67. But see Lee Webster, Why Caring for Our Own Dead is an Act of Social Justice, 8 Wake Forest J. Law & Pol’y 125 (2018) (discussing the home funeral movement in the United States).

68. Neb. Rev. Stat. § 38-1426(4).

69. Wis. Stat. § 154.30(8).

70. Conn. Gen. Stat. § 45a-318(c).

71. In some states, funeral directors are compelled to follow a decedent’s wishes. See, e.g., 239 Mass. Code Regs. 3.09.

72. See Cal. Health & Safety Code § 7100.1(a); Del. Code Ann. tit. 12, § 265; D.C. Code § 3-413; Me. Stat. tit 22, § 2843-A-5; Md. Code Ann., Health-Gen. § 5-509; Miss. Code Ann. § 73-11-58(1); N.H. Rev. Stat. Ann. § 290:20; N.D. Cent. Code § 23-06-03.7; Or. Rev. Stat. § 97.130; Wyo. Stat. Ann. § 2-17-101.

73. See Ala. Code § 34-13-11(a)(2)(A); Alaska Stat. § 13.75.010; Conn. Gen. Stat. § 45a-318(a)(1); Del. Code Ann. tit. 12, § 265; Ga. Code Ann. § 31-21-7(a); Haw. Rev. Stat. § 531B-3; 755 Ill. Comp. Stat. 65/40; Ind. Code § 29-2-19-8; Neb. Rev. Stat. § 30-2223(1); N.D. Cent. Code § 23-06-03.7; Okla. Stat. tit. 21, §§ 1151, 1158; Wis. Stat. § 154.30(8).

74. See Ala. Code § 34-13-11(a)(2)(a); Alaska Stat. § 13.75.010; Ga. Code Ann. § 31-21-7(a); Haw. Rev. Stat. § 531B-3; 755 Ill. Comp. Stat. 65/40; La. Stat. Ann. § 8:655; Neb. Rev. Stat. § 30-2223(1); Okla. Stat. tit. 21, §§ 1151, 1158; Tex. Health & Safety Code § 711.022(g).

75. See Ark. Code Ann. § 20-17-102(b)(1) (two witnesses); Conn. Gen. Stat. § 45a-318 (two witnesses); Ind. Code § 29-2-19-8 (two witnesses); Md. Code Ann., Health-Gen. § 5-509 (one witness); 239 Mass. Code Regs. 3.09 (one witness); Minn. Stat. § 149A.80.1 (one witness); Mont. Code Ann. § 37-19-903 (two witnesses); N.C. Gen. Stat. § 130A-420 (two witnesses); Wash. Rev. Code Ann. § 68.50.160 (one witness).

76. See Colo. Rev. Stat. § 15-19-104.5; N.M. Stat. Ann. § 24-12A-1; Utah Code Ann. § 58-9-602; Wis. Stat. § 154.30(8).

77. See Tanya Marsh, When Dirt and Death Collide: Legal and Property Interest in Burial Places, Prob. & Prop., Mar./Apr. 2016 at 59, 63.

78. See Ala. Code § 34-13-11(a)(2); Alaska Stat. § 13.75.020; Ariz. Rev. Stat. Ann. § 36-831; Ark. Code Ann. § 20-17-102(d)(1); Cal. Health & Safety Code § 7100(a)(1); Colo. Rev. Stat. § 15-19-106(1)(a); Conn. Gen. Stat. § 45a-318(a)(1); Del. Code Ann. tit. 12, § 264; D.C. Code § 3-413; Fla. Stat. § 497.005(43)(a); Ga. Code Ann. § 31-21-7(b); Haw. Rev. Stat. § 531B-4; Idaho Code § 54-1142; 755 Ill. Comp. Stat. 65/5; Ind. Code § 29-2-19-3; Iowa Code §§ 144C-3(1), 144C.5; Kan. Stat. Ann. § 65-1734; Ky. Rev. Stat. Ann. § 367.93103; La. Stat. Ann. § 8:655; Me. Stat. tit 22, § 2843-A-2; Md. Code Ann., Health-Gen. § 5-509; 239 Mass. Code Regs. 3.09; Mich. Comp. Laws § 700.3206(2); Minn. Stat. § 149A.80.2; Mo. Rev. Stat. § 194.119.2; Mont. Code Ann. § 37-19-904; Neb. Rev. Stat. § 30-2223(2); Nev. Rev. Stat. § 451.024; N.H. Rev. Stat. Ann. § 290:17; N.J. Stat. Ann. § 45:27-22; N.M. Stat. Ann. § 24-12A-2(A); N.Y. Public Health Law § 4201.3; N.C. Gen. Stat. § 130A-420; N.D. Cent. Code § 23-06-03; Ohio Rev. Code Ann. § 2108.70; Okla. Stat. tit. 21, § 1151; Or. Rev. Stat. § 97.130(3); 20 Pa. Cons. Stat. § 305(a); 5 R.I. Gen. Laws § 5-33.3-3; S.C. Code Ann. § 32-8-320(A)(1); Tenn. Code Ann. § 62-5-703; Tex. Health & Safety Code § 711.002(a); Utah Code Ann. § 58-9-602; Vt. Stat. Ann. tit 18, § 9702(a); Va. Code Ann. § 54.1-2825; Wash. Rev. Code Ann. § 68.50.160 (effective May 1, 2020); W. Va. Code Ann. § 30-6-22(a); Wis. Stat. § 154.30(8); Wyo. Stat. Ann. § 2-17-101.

79. See D.C. Code § 3-413; Fla. Stat. § 497.005(43)(a); Me. Stat. tit 22, § 2843-A-2; 239 Mass. Code Regs. 3.09; N.H. Rev. Stat. Ann. § 290:17; N.M. Stat. Ann. § 24-12A-2(A); Tex. Health & Safety Code § 711.002(a); Wyo. Stat. Ann. § 2-17-101.

80. See Ariz. Rev. Stat. Ann. § 36-831 (only if decedent unmarried); Cal. Health & Safety Code § 7100(a)(1); Kan. Stat. Ann. § 65-1734; Minn. Stat. § 149A.80.2; Mo. Rev. Stat. § 194.119.2; Tenn. Code Ann. § 62-5-703; Vt. Stat. Ann. tit 18, § 9702(a) (advance directive).

81. See Ala. Code § 34-13-11(a)(2); Alaska Stat. §§ 13.75.010, 030; Ark. Code Ann. § 20-17-102(b)(1); Colo. Rev. Stat. §§ 15-19-104(5), 106(1); Conn. Gen. Stat. § 45a-318(a)(1); Del. Code Ann. tit. 12, § 265; Ga. Code Ann. § 31-21-7(b); Haw. Rev. Stat. § 531B-5; Idaho Code § 54-1142; 755 Ill. Comp. Stat. 65/40; Ind. Code § 29-2-19-8; Iowa Code §§ 144C-3(1), 144C.5; Ky. Rev. Stat. Ann. § 367.93103(4); La. Stat. Ann. § 8:655; Md. Code Ann., Health-Gen. § 5-509(b) (designated agent only has priority after spouse, parents, children, and siblings); Mich. Comp. Laws § 700.3206(2); Minn. Stat. § 149A.80.2(1); Mont. Code Ann. § 37-19-904; Neb. Rev. Stat. § 30-2223(2); Nev. Rev. Stat. § 451.024; N.J. Stat. Ann. § 45:27-22; N.Y. Public Health Law § 4201.3; N.C. Gen. Stat. § 130A-420(a); N.D. Cent. Code § 23-06-31; Ohio Rev. Code Ann. § 2108.72; Okla. Stat. tit. 21, §§ 1151, 1158; Or. Rev. Stat. § 97.130(3); 5 R.I. Gen. Laws § 5-33.3-4; S.C. Code Ann. § 32-8-320(A)(1) (cremation only); Utah Code Ann. § 58-9-602(1); Va. Code Ann. § 54.1-2825.A; Wash. Rev. Code Ann. § 68.50.160(1); W. Va. Code Ann. § 30-6-22(a); Wis. Stat. § 154.30(8).

82. See 755 Ill. Comp. Stat. 65/10.

83. See Ind. Code § 35-45-19-3.

84. See id.; see also id. §§ 36-2-14-6, 16-37-3-7.

85. Id. § 16-37-3-3.

86. See id. § 16-37-3-11.

87. See id. § 16-37-3-10.

88. Id. § 25-15-9-18; see also id. § 29-2-19-17.

89. Id. § 25-15-9-18; see also id. § 29-2-19-17.

90. Id. § 29-2-19-8.

91. See id. § 29-2-19-9.

92. Id. § 29-2-19-8.

93. Id.

94. Id. There is no explanation of what may constitute a “similar document.”

95. See Ill. Comp. Stat. 65/10, 65/15.

96. See In re Estate of Whalen, 827 N.W.2d 184 (Iowa 2013).

97. See id.

98. See id. at 185.

99. See id.

100. See id.

101. Id.

102. See id.

103. See id.

104. See id. at 185–86.

105. Id.

106. See id. at 186.

107. Id. Although it is uncontroverted that the funeral director gave Mary Ann and Flo the incorrect legal advice, the court did not discuss the propriety of a funeral director dispensing legal advice, or any reliance argument that Mary Ann and Flo may have had. See id.

108. Iowa Code § 144C.3(1) (“A declaration shall name a designee who shall have the sole responsibility and discretion for making decisions concerning the final disposition of the declarant’s remains and the ceremonies planned after the declarant’s death.”).

109. Id. § 144C.5(1).

110. See id.

111. See id. at (1)(b).

112. See id. § 144C.2(8).

113. See id. § 144C.6(2).

114. Id. § 144C.3(2) (“A declaration shall not include directives for final disposition of the declarant’s remains and shall not include arrangements for ceremonies planned after the declarant’s death.”).

115. See In re Estate of Whalen, 827 N.W.2d 184, 185 (Iowa 2013).

116. See id.

117. See id.

118. See id.

119. See id. at 186.

120. See id.

121. See id.

122. See id.

123. Woman Must be Buried in Iowa, Despite Her Wishes, Supreme Court Rules, The Gazette (Cedar Rapids, Iowa Feb. 22, 2013).

124. Whalen, 827 N.W.2d. at 186–87.

125. See id.

126. See id. at 187.

127. Thompson v. Deeds, 61 N.W. 842, 843 (Iowa 1895); see also King v. Frame, 216 N.W. 630, 632 (Iowa 1927) (“[T]he right of a person to provide by will for the disposition of his body has been generally recognized.”).

128. Whalen, 827 N.W.2d. at 187.

129. See id. at 186.

130. See id. at 187.

131. See id.

132. See id. at 194.

133. See id.

134. Id. at 190.

135. Id. at 192 (citing Legis. Servs. Agency, 2008 Summary of Legislation, S.F. 473—Disposition of Human Remains—Authorization and Consent (Iowa 2008), available at https://www.legis.iowa.gov/legislation/BillBook?ga=82&ba=SF473). “This Act responds to a perceived need for clarity as to who will determine the disposition of a decedent’s remains.” Id.

136. See Jim Carney & Jenny Tyler, Legislative Report: Whatever Happened to Ted Williams’ Head?, 68 The Iowa Lawyer No. 3, March 2008, at 25.

137. See id. at 25–26.

138. Grant Schulte, Bill Gives Deceased Control of Remains, Des Moines Reg., Feb. 14, 2008.

139. Carney & Tyler, supra note 136, at 25. (“Senate File 473, the ‘Final Disposition Directives Act’ is a bill that was drafted by a working group of approximately 30 different stakeholders, including the Iowa Insurance Division, the Iowa Department of Elder Affairs, the Iowa Attorney General’s Office, the Iowa Department of Public Health and The Iowa State Bar Association. SF 473 allows competent adults to execute a legally binding, written declaration that expresses their directives concerning how their remains should be disposed of upon death; their preferences regarding the ceremony, if any, to be performed after their deaths; and who is designated to oversee these matters. Today, without passage of SF 473, there are no provisions in Iowa law that legally require survivors to honor a person’s wishes as to the disposition of his or her body or remains after he or she dies.”).

140. See Schulte, supra note 138 (“‘If you trust someone to make your decisions throughout life, they should be able to carry your wishes’ through death,’ said Suzanne Gebel, executive director of the Funeral Directors Association.”).

141. H. File 2088, 82d Gen. Assemb., Reg. Sess. (Iowa 2008), https://www.legis.iowa.gov/legislation/BillBook?ga=82&ba=HF2088.

142. Carney & Tyler, supra note 136, at 26.

143. Suzanne M. Gebel, Letter to the Editor, Des Moines Reg., Feb. 22, 2008.

144. Id. (“The association’s proposal could conflict with other legal instruments. What if the decedent’s will, pre-need funeral contract and final disposition all request burial, but in different cemeteries? What if the final disposition designates some distant cousin to be in charge? Our bill, HF 2088 extends the rights of the durable power of attorney for health care through disposition of the body, as is done in other states.”).

145. In re Estate of Whalen, 827 N.W.2d. 184, 194 (Iowa 2013).

146. Id. at 192.

147. See id. at 192–93.

148. Id. at 195 (Cady, C.J. dissenting).

149. Id. at 194.

150. See, e.g., Arthur v. Milstein, 949 So. 2d 1163, 1163 (Fla. Dist. Ct. App. 2007).

151. See Mont. Code Ann. § 37-19-903(3)(b) (permitting decedents to leave “disposition directions” such as “a letter of instructions, a will, a trust document, or advance directives”); N.M. Stat. Ann. § 24-12A-2(A) (giving preference to a decedent’s “written instructions” regarding the disposition of their remains). The court noted that Mary Ann did not argue that the law of Montana or New Mexico controlled in this case, and it therefore applied Iowa law. In re Estate of Whalen, 827 N.W.2d. 184, 188 n.2 (Iowa 2013). This appears to have been a missed opportunity. It is unclear whether Mary Ann could have successfully argued that either state’s law applied (although New Mexico is more likely) because Flo died in Iowa and had registered to vote there shortly before her death. But one major unresolved issue with these state statutory schemes is that they do not define to whom they apply—all persons who die in the state? Residents of the state, regardless of where they die?

152. See Ind. Code Ann. § 29-1-7-25.

153. See Del. Code Ann. tit. 12, § 270(b) (“Unless otherwise provided in the declaration instrument, a declaration instrument or similar instrument executed in another state that complies with the requirements of this subchapter may, in good faith, be relied upon by a third party in this State if an action requested by such declarant does not violate any law of the federal government, Delaware, or a political subdivision.”).

154. Ky. Rev. Stat. Ann. § 367.93119.

155. Iowa Code § 144C.9(2).

156. Indeed, Flo’s will was admitted to probate in Iowa. See Iowa Code § 633.283 (“A will executed outside this state, in the mode prescribed by the law, either of the place where executed or of the testator’s domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state, provided said will is in writing and subscribed by the testator.”).

157. Appellant Michael John Whalen’s Reply Brief at 6, In re Estate of Whalen, 827 N.W.2d 184 (Iowa 2013) (No. 12-1927), 2013 WL 6516583, at *6.

158. See S.C. Code Ann. § 32-8-315.

159. Suzanne M. Gebel, Letter to the Editor, Des Moines Reg., Feb. 22, 2008.

160. Thomas Lynch, The Undertaking: Life Studies from the Dismal Trade 7 (1998).

161. Id.

162. See Making the Grade (Part 3): How do state laws regarding right of disposition stack up against NFDA model guidelines?, Memorial Business Journal 1 (Oct. 2, 2014).

163. Id. In my view, this is a goal that everyone should endorse—ambiguity is not in the best interests of anyone.

164. Id.

165. See Ala. Code § 34-13-11; Ark. Code Ann. § 20-17-102; Ga. Code Ann. § 31-21-7; Mont. Code Ann. § 37-19-904; N.H. Rev. Stat. Ann. § 290:16–290:17; Ohio Rev. Code Ann. § 2108.70; Tex. Health & Safety Code Ann. § 711.002(a); Wis. Stat. § 154.30.

166. See Making the Grade, supra note 162.

167. Id.

168. See id.

169. Id. at 2.

170. See Ala. Code § 34-13-11(a)(2)(b); Alaska Stat. § 13.75.010(a); Ariz. Rev. Stat. Ann. § 36-831.01(A); Ark. Code Ann. § 20-17-102(b)(1); Cal. Health & Safety Code § 7100.1(a); Colo. Rev. Stat. § 15-19-104.5, 106(1); Conn. Gen. Stat. § 45a-318(a)(1); Del. Code Ann. tit. 12, § 265; Fla. Stat. § 497.002(2); Ga. Code Ann. § 31-21-7(a); Haw. Rev. Stat. § 531B-3; Idaho Code § 54-1139; 755 Ill. Comp. Stat. 65/40; Ind. Code § 29-2-19-8(a); Kan. Stat. Ann. § 58-629(c); Ky. Rev. Stat. Ann. § 367.93103; La. Stat. Ann. § 8:655(A); Me. Stat. tit. 22, § 2843-A-5; Md. Code Ann., Health-Gen. § 5-509(a); Minn. Stat. § 149A.80.1; Miss. Code Ann. § 73-11-58(1); Miss. Code Ann. § 73-63-25; Mont. Code Ann. § 37-19-903; Neb. Rev. Stat. § 30-2223(1); N.H. Rev. Stat. Ann. § 290:20; N.M. Stat. Ann. § 24-12A-1(A); N.Y. Public Health Law § 4201.2(c); N.C. Gen. Stat. § 130A-420(a)-(a2); N.D. Cent. Code § 23-06-03.7; Okla. Stat. tit. 21, § 1151(A); Or. Rev. Stat. § 97.130(1); 20 Pa. Cons. Stat. § 305(a); 5 R.I. Gen. Laws § 5-33.2-24; S.C. Code Ann. § 32-8-315(A); S.D. Codified Laws § 34-26-1; Tenn. Code Ann. § 62-5-702; Tex. Health & Safety Code § 711.022(g); Utah Code Ann. § 58-9-601; Vt. Stat. Ann. tit. 18, § 9712(a); Wash. Rev. Code Ann. § 68.50.160(1); W. Va. Code Ann. § 30-6-22(a); Wis. Stat. § 154.30(8); Wyo. Stat. Ann. § 2-17-101.

171. See Making the Grade, supra note 162, at 3.

172. See id. at 3. The Report Card notes that the states that “do not offer this protection” are Alaska, the District of Columbia, Louisiana, Massachusetts, Mississippi, Nevada, North Carolina, North Dakota, Pennsylvania, South Dakota, and Virginia.

173. See id.

174. Id. at 4 (noting that the trial lawyers association successfully opposed such a provision in Ohio).

175. See id. at 2. The states that revised their laws are California, Idaho, Indiana, Louisiana, Maine, Mississippi, Nebraska, Nevada, Oklahoma, Oregon, and Washington. Hawai’i enacted its first right of disposition law in 2013.

176. See, e.g., International Cemetery, Cremation, and Funeral Association, Model Guidelines, Authorization to Control Final Disposition, http://www.iccfa.com/2017/03/21/authorization-to-control-final-disposition (“There should be a limitation of liability for cemetery authorities, crematory authorities, direct disposers, funeral establishments, and related businesses that have carried out the decedent’s wishes based on directions contained in the form or in a will, whether or not the will has been probated or otherwise declared valid, to the extent that such conduct has been in good faith. Where a person represents himself as the authorizing agent of the decedent and makes final disposition arrangements, such person should be held liable for all damages, whether directly or indirectly, that may result from any party’s reliance upon such representation. This provision should include reliance on the authorizing agent’s identification of the decedent.”).

177. Making the Grade, supra note 162, at 3.

178. See In re Estate of Whalen, 827 N.W.2d 184, 186 (2013).

179. See id. at 185–86.

180. See id.

181. See id. at 187.

182. See id.

183. See id. at 189–90.

Appendix

Personal Preference and Designated Agent Statutes

State

Personal Preference

Designated Agent

Alabama

Ala. Code

§ 34-13-11(a)(2)(b)

Decedent may attach “specific directions” to notarized affidavit appointing agent.

Ala. Code

§ 34-13-11(a)(2)

Decedent may appoint agent in notarized affidavit “substantially similar” to form in statute.

Alaska

Alaska Stat.

§ 13.75.010

Decedent may leave directions in a signed, notarized “disposition document” that contains form and content set forth in Alaska Stat. § 13.75.030.

Alaska Stat.

§ 13.75.020

Decedent may designate agent in a signed, notarized “disposition document” that contains form and content set forth in Alaska Stat. § 13.75.030.

Arizona

Ariz. Rev. Stat.

§ 36-831.01

No mechanism for leaving directions, but decedent’s wishes must be respected if known to person who controls remains.

Ariz. Rev. Stat.

§ 36-831

If decedent is unmarried, a designated agent may be appointed with express language in a health care power of attorney or durable power of attorney.

Arkansas

Ark. Code

§ 20-17-102(b)(1)

Declaration signed by decedent and two witnesses.

Ark. Code

§ 20-17-102(d)(1)

Decedent may appoint agent in declaration.

California

Cal. Health & Safety Code § 7100.1

In a writing (including a will).

Cal. Health & Safety Code § 7100(a)(1)

Decedent may appoint agent in health care power of attorney with express language.

Colorado

Colo. Rev. Stat.

§ 15-19-104(5)

Writing signed by decedent and either notarized or witnessed by one adult.

Colo. Rev. Stat.

§ 15-19-106(1)(a)

Decedent may appoint agent in writing in compliance with Colo. Rev. Stat. § 15-19-104.

Connecticut

Conn. Gen. Stat.

§ 45a-318(a)(1)

Writing signed by decedent and two witnesses; optional form provided.

Conn. Gen. Stat.

§ 45a-318(a)(1)

Writing signed by decedent and two witnesses; optional form provided.

Delaware

Del. Code Ann. tit. 12, § 265

Writing signed by decedent and substantially in the form set forth in Del. Code tit. 12, § 265.

Del. Code Ann. tit. 12, § 264

Writing signed by decedent and substantially in the form set forth in Del. Code tit. 12, § 265.

District of Columbia

D.C. Code § 3-413

Writing dated and signed by decedent.

D.C. Code § 3-413

Writing dated and signed by decedent.

Florida

Fla. Stat.

§ 497.002(2)

Statute recognizes competent adults have right to control decisions but no mechanism for doing so.

Fla. Stat.

§ 497.005(43)(a)

Decedent may designate agent in “inter vivos authorization and directions.” No detail on minimum requirements.

Georgia

Ga. Code Ann.

§ 31-21-7(a)

Preneed contract or notarized affidavit in substantially the form set forth in Ga. Code Ann. § 31-21-7(b).

Ga. Code Ann.

§ 31-21-7(b)

Health care agent or notarized affidavit substantially in form set forth in statute.

Hawai’i

Haw. Rev. Stat.

§ 531B-3

Decedent may leave instructions in will, preneed contract, or notarized writing in compliance with Haw. Rev. Stat. § 531B-5.

Haw. Rev. Stat.

§ 531B-4

Decedent may designate agent in will or through notarized affidavit as set forth in Haw. Rev. Stat. § 531B-5.

Idaho

Idaho Code § 54-1139

Decedent may direct only through funded “prearranged funeral plan.”

Idaho Code § 54-1142

Decedent may designate agent in funded “prearranged funeral plan,” in writing consistent with requirements to transfer real property, or with express language in durable power of attorney.

Illinois

755 Ill. Comp. Stat. 65/40

Through will, prepaid funeral or burial contract, a power of attorney with express language, a cremation authorization form, or in a written instrument that satisfies the provisions of 755 Ill. Comp. Stat. 65/10 and 65/15 and that is signed by the decedent and notarized.

755 Ill. Comp. Stat.

65/5

Decedent may name an agent in a will or in a written instrument that satisfies the provisions of 755 Ill. Comp. Stat. 65/10 and 65/15

and that is signed by the decedent and notarized.

Indiana

Ind. Code § 29-2-19-8

Decedent may execute “funeral planning declaration” substantially in the form set forth in Ind. Code § 29-2-19-13. “A declaration may not be included in a will, a power of attorney, or a similar document.” Document must be in writing, signed by decedent, dated, witnessed by two disinterested witnesses, and name a designee.

Ind. Code § 29-2-19-3

A person may name a “designee” in a “funeral planning declaration” consistent with Ind. Code § 29-2-19. A “funeral planning declaration” must name a designee.

Iowa

Iowa Code § 144C.3(2)

Decedent may not leave directions.

Iowa Code § 144C.3(1); Iowa Code § 144C.5

Decedent may designate agent in writing substantially in the form set forth in Iowa Code § 144C.6(1) or in document signed by decedent and either witnessed by two witnesses or notarized.

Kansas

Kan. Stat. Ann.

§ 58-629(c)

Person holding power of attorney in durable power of attorney for health care decisions has a “duty to act consistent with the expressed desires of the principal.” No mechanism to express desires.

Kan. Stat. Ann.

§ 65-1734

Decedent may designate agent in durable power of attorney for health care decisions.

Kentucky

Ky. Rev. Stat. Ann.

§ 367.93103

Decedent may leave instructions in written document signed and dated by decedent, signed by two witnesses, and notarized. Instructions may not be in a will, a power of attorney, or “a similar document.”

Ky. Rev. Stat. Ann.

§ 367.93103

Decedent may designate agent in written document signed and dated by decedent, signed by two witnesses, and notarized. Instructions may not be in a will, a power of attorney, or “a similar document.”

Louisiana

La. Stat. Ann. § 8:655

Decedent may leave instructions in the form of a “notarial testament” or a written and notarized declaration.

La. Stat. Ann. § 8:655

Decedent may designate agent in a “notarial testament” or a written and notarized declaration.

Maine

Me. Stat. tit. 22,

§ 2843-A-5

Decedent may leave written and signed instructions.

Me. Stat. tit. 22,

§ 2843-A-2

Decedent may designate another person to take custody and control of remains in written and signed instructions.

Maryland

Md. Code Ann., Health–Gen. § 5-509

“By executing a document that expresses the individual’s wishes regarding disposition of the body” or by entering into preneed contract. Document must be written, signed, and witnessed.

Md. Code Ann., Health–Gen. § 5-509

“By executing a document that expresses the individual’s wishes regarding disposition of the body” or by entering into preneed contract. Document must be written, signed, and witnessed.

Person authorized by decedent has priority after spouse, parents, children, and siblings.

Massachusetts

No statutory language.

Licensed Funeral Establishments must honor preneed contracts and wishes of decedents expressed in written, signed, and witnessed documents. 239 Mass. Code Regs. 3.09.

No statutory language.

239 Mass. Code Regs. 3.09 suggests that a “valid written document” may be able to designate an agent to trump next of kin priority list.

Michigan

No statutory language.

Mich. Comp. Laws § 700.3206(2)

Decedent may appoint a “funeral representative” in a dated writing signed by decedent and either witnessed by two witnesses or notarized. “A funeral representative designation may be included in the declarant’s will, patient advocate designation, or other writing.”

Minnesota

Minn. Stat. § 149A.80.1

Decedent may leave instructions in signed, dated, witnessed written instrument. This may include a will.

Minn. Stat. § 149A.80.2

Decedent may designate agent in a signed written instrument that may be a health care directive but not power of attorney that terminates at death.

Mississippi

Miss. Code Ann.

§ 73-11-58(1) suggests that a decedent may leave a “written authorization for the cremation and/or disposition of the decedent’s body.”

Miss. Code. Ann.

§ 75-63-25 provides that a decedent’s wishes in a fully funded preneed contract shall control over the wishes of next of kin.

No statutory language.

Missouri

No statutory language.

Mo. Rev. Stat. § 194.119.2

Decedent may grant “right of sepulcher” to person via express language in durable power of attorney.

Montana

Mont. Code Ann.

§ 37-19-903

Decedent may leave “disposition directions” in written instrument signed and witnessed by two people, or video with two witnesses signing attestation, or may enter into a preneed contract with a licensed mortuary. “The written instrument may be but is not limited to a letter of instructions, a will, a trust document, or advance directives.”

Mont. Code Ann.

§ 37-19-904

Decedent may authorize another person to control his or her remains through notarized affidavit in substantially the form set forth in the statute.

Nebraska

Neb. Rev. Stat.

§ 30-2223(1)

Decedent may leave instructions through testamentary disposition, through preneed contract, or notarized affidavit as set forth in statute.

Neb. Rev. Stat.

§ 30-2223(2)

Decedent may designate agent via notarized affidavit in substantially the form set forth in statute.

Nevada

No statutory language.

Nev. Rev. Stat. § 451.024

Decedent may designate agent via notarized affidavit in substantially the form set forth in the statute.

New Hampshire

N.H. Rev. Stat. Ann. § 290:20

Person with custody and control of remains shall abide by instructions left by decedent in written, signed instrument.

N.H. Rev. Stat. Ann. § 290:17

Resident of the state may leave written, signed instructions designating agent to take custody of and control remains.

New Jersey

No statutory language.

N.J. Stat. Ann.

§ 45:27-22

A decedent may “[appoint] a person to control the funeral and disposition of the human remains” in a will.

New Mexico

N.M. Stat. Ann.

§ 24-12A-1

Decedent may authorize own cremation and disposition of cremated remains via written statement witnessed by two people or notarized, or through decedent’s will.

No statutory language, although N.M. Stat. Ann. § 24-12A-2(A) suggests that a decedent may leave “written instructions” appointing agent.

New York

N.Y. Pub. Health Law § 4201.2(c)

Person in charge of disposition shall carry out decedent’s “directions” if lawful and practicable. No requirement for writing.

N.Y. Pub. Health Law § 4201.3

Decedent may designate agent through writing that is signed by decedent and agent, and witnessed by two people, in form substantially in accordance with that set forth in statute.

N.Y. Pub. Health Law § 4201.4

Decedent may designate agent in a will.

North Carolina

N.C. Gen. Stat.

§ 130A-420

Decedent may leave instructions in preneed contract, health care power of attorney, written will, or written, signed statement witnessed by two people.

N.C. Gen. Stat.

§ 130A-420

Decedent may designate agent through preneed contract, health care power of attorney, written will, or written, signed statement witnessed by two people.

North Dakota

N.D. Cent. Code

§ 23-06-03.7

“A decedent’s instructions may be reflected in a variety of methods,” including pre-need contract, a health care directive, a durable power of attorney for health care, a power of attorney, a will, or a document created under § 23-06-31.

N.D. Cent. Code

§ 23-06-03

Decedent may designate agent in document created under § 23-06-31, which must be written, signed, and dated.

Ohio

No statutory language.

Ohio Rev. Code Ann.

§ 2108.70

Decedent may designate agent through written declaration compliant with the requirements of 2108.72 (in writing, signed, and either witnessed or notarized, certain information required to be included).

Oklahoma

Okla. Stat. tit. 21, § 1151

Decedent given broad right to dictate disposition of remains.

Okla. Stat. tit. 21, § 1158

Limits decedent’s rights to preneed contract and “written document that meets the requirements of the State of Oklahoma.”

Okla. Stat. tit. 21,

§ 1151

Decedent may designate agent through sworn affidavit.

Oregon

Or. Rev. Stat.

§ 97.130(1)

Decedent may make arrangements through written, signed instrument or prepaid preneed contract.

Or. Rev. Stat.

§ 97.130(3)

Decedent may designate agent in signed writing with two witnesses in form substantially similar to that set forth in statute.

Pennsylvania

20 Pa. Cons. Stat. § 305(a)

Suggests that decedent may leave instructions in will.

20 Pa. Cons. Stat. § 305(a)

Suggests that decedent may designate agent in will.

Rhode Island

5 R.I. Gen. Laws

§ 5-33.2-24.

Licensed funeral directors shall honor the terms of funeral services contracts.

5 R.I. Gen. Laws

§ 5-33.3-3.

Decedent may designate agent in signed, witnessed, notarized affidavit substantially similar to that set forth in 5 R.I. Gen. Laws § 5-33.3-4.

South Carolina

S.C. Code Ann.

§ 32-8-315

Decedent may authorize own cremation and disposition of cremated remains in cremation authorization form.

S.C. Code Ann.

§ 32-8-320(A)(1)

Decedent may designate agent in will or other verified, attested document to authorize cremation.

South Dakota

S.D. Codified Laws

§ 34-26-1

Decedent has a right to direct disposition of own remains. No method of recording directions is established by statute.

No statutory law.

Tennessee

Tenn. Code Ann.

§ 62-5-702(a)

Decedent may leave “disposition directions” or a preneed contract.

Tenn. Code Ann.

§ 62-5-703

Decedent may designate agent in durable power of attorney for health care.

Texas

Tex. Health & Safety Code § 711.002(g)

Decedent may leave written directions in a will, a prepaid funeral contract, or a written, signed, and acknowledged instrument.

Tex. Health & Safety Code § 711.002(a)

Decedent may designate agent in signed written instrument.

Utah

Utah Code Ann.

§ 58-9-601

Decedent may leave notarized written directions or with same formalities as a will.

Utah Code Ann.

§ 58-9-602

Decedent may designate agent in notarized written instrument (other than power of attorney that terminates upon death) or with same formalities as a will.

Vermont

Vt. Stat. Ann. tit. 18, § 9712

Person may leave instructions in advance directive or preneed contract. Oral wishes should also be honored.

Vt. Stat. Ann. tit. 18, § 9702(a)

Decedent may designate an agent in an advance directive.

Virginia

No statutory law.

Va. Code Ann.

§ 54.1-2825(A)

Decedent may designate agent in a signed, notarized writing accepted by the agent.

Washington

Wash. Rev. Code Ann. § 68.50.160(1)

Decedent may leave instructions in signed, witnessed document or in preneed contract.

Wash. Rev. Code Ann. § 68.50.160(1)

Decedent may designate an agent in a signed, witnessed document.

West Virginia

W. Va. Code

§ 30-6-22(a)

Decedent may leave instructions in a will, advance directive, or preneed funeral contract.

W. Va. Code

§ 30-6-22(a)

Decedent may designate agent in written, notarized statement.

Wisconsin

Wis. Stat. § 154.30(8)

Decedent may leave “suggestions” for disposition in authorization for final disposition in form set forth in statute or in accordance with minimum requirements, that is signed writing either witnessed or notarized.

Wis. Stat. § 154.30(8)

Decedent may designate agent in authorization for final disposition in form set forth in statute or in accordance with minimum requirements, that is signed writing either witnessed or notarized.

Wyoming

Wyo. Stat. Ann.

§ 2-17-101

Decedent may leave instructions for disposition in “written instructions” or “document.”

Wyo. Stat. Ann.

§ 2-17-101

Decedent may designate agent in “written instructions” or “document.”

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Tanya D. Marsh

Tanya D. Marsh, Professor of Law, Wake Forest University School of Law, Winston-Salem, North Carolina. A graduate of Indiana University and Harvard Law School, Marsh is licensed to practice law in Indiana and a licensed funeral director in California. She is the author of books, including The Law of Human Remains (2015), the first treatise on the subject in seventy years, and the co-author of Cemetery Law: The Common Law of Burying Grounds in the United States (2015). At Wake Forest, she teaches courses in property, commercial real estate, and decedents’ estates, as well as the only course at a U.S. law school in funeral and cemetery law. A version of this Article was presented at the American College of Trust and Estate Counsel 2018 annual meeting and the 2018 spring meeting of the American Bar Association Real Property Trust and Estate Law Section.