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

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