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The short, but perhaps not so obvious answer to the question “Who has the right to determine what happens to my body when I die?” is, YOU – provided you planned ahead of time.
We advise many of our clients about the benefits of planning ahead for the disposition of their remains. Under New York State law you can designate in writing that a specific individual, as well as successors, will have the right to control the disposition of your remains. This will allow you to select someone you trust to carry out your wishes. The writing must substantially conform to a statutory form and must be signed and dated by you and the agent, and it must be properly witnessed.
If you do not have a written instrument that designates a particular agent to control the disposition of your remains, then only those individuals who have priority under the law can determine what to do with your remains. Absent the written instrument, the priority under the law is as follows:
- Your surviving spouse;
- Your surviving domestic partner;
- Any of your surviving children 18 years old or older;
- A guardian appointed pursuant to Article 17A of the Surrogate’s Court Procedure Act, or Article 81 of the Mental Hygiene Law;
- Any person 18 years of age or older who would be entitled to share in your estate under the laws of intestacy (i.e. your heirs) with the person closest in relationship having the highest priority;
- A duly appointed fiduciary of your estate;
- A close friend or relative who is familiar with your wishes related to the disposition of your remains
- A chief fiscal officer of a county or public administrator duly appointed
Although the statute provides a framework of individuals who can control the disposition of your remains, the individuals listed may not be the best person suited to make the decision about the disposition of your remains.
Another common planning strategy to help you ensure your wishes are honored after your death is to preplan and prepay your funeral. The difference between a “preplan” and a “prepaid” funeral is that you can “preplan” your funeral without paying now if the funeral home agrees to it. Once you’ve selected a funeral home, you can discuss your wishes with the funeral director who will keep the plan on file until it is needed. You will have to make arrangements for the payment of the funeral after your death.
You can also prepay the funeral. For this option, you can either enter into an agreement with the funeral home, and the money will be held in the name of the funeral home as trustee for you. Or, you can deposit the money in a bank account for the benefit of the funeral home.
No matter what your wishes may be, it is important that you have a plan in place to ensure they are honored, and you have designated the right individuals to carry them out.