Control of Disposition of Remains

Anyone completing an estate plan should consider leaving written instructions regarding their wishes for their funeral and the disposition of their body. Section 3-701 of the Uniform Probate Code states that "a person named executor in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements" prior to being actually appointed by a court. Most family disagreements over funeral-related matters that arise when a loved one passes away are resolved by negotiations amongst the family, sometimes with the assistance of experienced funeral directors and clergy. However, some disagreements, such as control over the disposition of the decedent's body, can be more serious and cannot be resolved without court intervention.

There is little uniformity among the states in this area. See generally Shawn Irwin Walker, Over My Dead Body: Preventing and Resolving Disputes Regarding the Disposition of the Dead, 43 ACTEC L.J. 385, 388 (2018). Utah is one of the states that has a "priority of decision" law, which is found in Part 6, Control of Disposition, of the Funeral Services Licensing Act. Section 58-9-601 of the Utah Code confirms the probate code concept that a decedent's written instructions concerning their funeral and manner of burial are enforceable but adds the requirement that such instructions be "acknowledged before a notary public or executed with the same formalities required of a will..."

Another interesting aspect of this law is the fact that the nominated personal representative under the decedent's will, depending on the circumstances, may not have first, or even second, priority to control the disposition of the decedent's body. The person with first priority is whoever is designated "in a written instrument, excluding a power of attorney..., if the written instrument is acknowledged before a Notary Public or executed with the same formalities required of a will..."

The person identified as "personal representative" in the decedent's will may appear to fit this description; however this section is clearly describing a distinct role because section 58-9-602(3) of the Utah Code identifies "the person nominated to serve as the personal representative of the decedent's estate in a will" as the one with third priority. Second in line is "the surviving, legally recognized spouse of the decedent, unless a personal representative was nominated by the decedent subsequent to the marriage, in which case the personal representative shall take priority over the spouse."

A few different measures could be taken in order to prevent disputes over the disposition of a body. First, individuals could specify in their will that they are designating their personal representative as the person with the right and duty to control the disposition of the body under Utah Code 58-9-602. Such designee should be aware of the scenarios under which they could lose their right of disposition and also the process for resolving disputes. Finally, individuals should leave notarized instructions to their next of kin specifying their funeral and burial wishes. 

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