Funeral Arrangements (Who has the power to decide)

Choosing and Paying for the Funeral

Generally you may choose own burial arrangements. You may appoint someone else to make those decisions, and it is a crime to not follow your directions

 

Oklahoma law contains specific guidance concerning who gets to decide funeral arrangements.  First priority is given to written directions left by the deceased person or a pre-need funeral service contract.  Unfortunately, far too few of us have taken advantage of the opportunity to write down the plan or desires we have for or funeral and burial.  I regularly encourage my clients to take a few minutes with their local funeral director and leave instructions to guide the memorial service.

 

It is fair to note that many of us do not have specific plans in mind for our memorial service.  But we know that there is someone in our life who will want to plan that service and will find that memorial particularly important.  The law allows you to appoint the person whom you trust to make those decisions for you.  That appointment should be in writing and witnessed.  You may make this appointment in your Will or in a separate document.

If you have made no nomination or appointment of someone to make these memorial decisions, and did not have a pre-need funeral service contract, your surviving spouse will have the power to decide your funeral arrangements.  If your spouse is unavailable or unwilling, your child, or the majority of your children will make those decisions.  If these can’t, or don’t, decide then parents are next in line of priority. If the parents are unavailable, the majority of siblings will have the authority to arrange the funeral. After siblings is the guardian, if any, and then the closest heirs at law.

 

Often this statutory arrangement leads to acceptable outcomes and the close family members who would seem most likely to care about the memorial arrangements are given the appropriate priority.  Occasionally the authority would fall to someone who should not decide. The law provides that if the person who would decide under the general list of priority is estranged from the decedent, and that is demonstrated to the Judge, he or she will not have authority to make the funeral arrangements.  The Oklahoma law defines estranged as “estranged” means a physical and emotional separation from the decedent at the time of death that clearly demonstrates an absence of due affection, trust and regard for the decedent.  I would suggest to you that this definition leaves much to be desired and leaves a reasonable likelihood of the wrong person making final memorial decisions.  Of course, that is easily prevented by a pre-need funeral service contract or the written appointment of the person you would prefer to plan your memorial.

 

 

  1. Statutory Priority
  2. The deceased person’s decisions get the highest priority, provided they entered into a pre-need funeral services contract or executed a written document that meets the requirements of the State of Oklahoma.
  3. A representative of the deceased person appointed by the decedent by means of an executed and witnessed written document meeting the requirements of the State of Oklahoma, but if they left no representative,
  4. The surviving spouse, but if there is no surviving spouse or if the spouse is unable or unwilling to decide;
  5. The sole surviving adult child of the decedent whose whereabouts is reasonably ascertained or if there is more than one adult child of the decedent, the majority of the surviving adult children whose whereabouts are reasonably ascertained, but if there are no children willing and able to make the decisions;
  6. The surviving parent or parents of the decedent, whose whereabouts are reasonably ascertained, but if no parent survivies who is willing and able to decide;
  7. The surviving adult brother or sister of the decedent whose whereabouts is reasonably ascertained, or if there is more than one adult sibling of the decedent, the majority of the adult surviving siblings, whose whereabouts are reasonably ascertained, and if no adult sibling is available and willing to make the decisions;
  8. The guardian of the person of the decedent at the time of the death of the decedent, if one had been appointed;
  9. The nearest relative, but if there is no one;
  10. If the decedent was an indigent person or other person the final disposition of whose body is the financial responsibility of the state or a political subdivision of the state, the public officer or employee responsible for arranging the final disposition of the remains of the decedent; and
  11. In the absence of any person under paragraphs 1 through 9 of this section, any other person willing to assume the responsibilities to act and arrange the final disposition of the remains of the decedent, including the personal representative of the estate of the decedent or the funeral director with custody of the body, after attesting in writing that a good-faith effort has been made to no avail to contact the individuals under paragraphs 1 through 9 of this section.

 

  1. The right to make the funeral decisions can be lost[i]:

Any person entitled by law to the right to dispose of the body of the decedent shall forfeit that right, and the right shall be passed on to the next qualifying person as listed above in the following circumstances:

  1. Any person charged with first or second degree murder or voluntary manslaughter in connection with the death of the decedent, and whose charges are known to the funeral director[ii]; provided, however that if the charges against such person are dropped, or if such person is acquitted of the charges, the right of disposition shall be returned to the person;
  2. Any person who does not exercise the right of disposition within three (3) days of notification of the death of the decedent or within five (5) days of the death of the decedent, whichever is earlier; or
  3. If the district court[iii] determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this statute, “estranged” means a physical and emotional separation from the decedent at the time of death that clearly demonstrates an absence of due affection, trust and regard for the decedent.

[i] 21 O.S. §1151a

[ii] Be sure to notify the funeral director, preferably in writing, if you want that funeral director to act on that information.

[iii] pursuant to Title 58 of the Oklahoma Statutes

 

Call Terrell Monks at 405-733-8686 to create your estate plan.  you can, and should, not only decide how your affairs will be managed, but make that plan in an enforceable manner. We can help guide you through that process.

Attorney Terrell Monks

Attorney Terrell Monks

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