How to Ensure the Proper Disposition of a Loved One’s Remains

When a loved one dies, the emotionally charged issue of how to handle the disposition of their remains is likely to arise. In California, who has the rights to a dead body? What are the laws surrounding custody of remains of deceased persons? Who makes decisions about disposition of remains? What are the options for final body disposition at death? How long before burial after death? When after death can a cremation take place?

Once the person charged with disposing of your loved one’s remains is officially appointed, other types of issues can arise. For instance, are they acting promptly and in accordance with the decedent’s wishes? Or, have they altogether failed to act?

The time following the loss of a loved one can be delicate for everyone involved; it can be made even more challenging by family disagreements about the proper disposition of remains. The following sections will explore the subject of custody of remains of deceased persons in California and potential steps that can be taken to ensure their remains are disposed of in accordance with their wishes.

Who Has the Rights to a Dead Body and Its Disposition?

California’s laws regarding dead bodies are not as straightforward as one might think. Many people falsely believe the decedent’s surviving spouse and immediate family are automatically entitled to control the disposition of remains, but it is actually the agent designated under the decedent’s power of attorney for health care (or Advanced Health Care Directive) who is allowed to direct the disposition of the decedent’s remains.[1] This agent is the individual the decedent formally designated in their estate planning documents to make their health care decisions; it is irrelevant whether this person has a familial connection to the decedent.[2]

If the decedent had not appointed an agent to control the disposition of their remains, then the closest living relative (starting with the decedent’s surviving spouse) is empowered under the law to make decisions relating to the disposition of their remains. Health and Safety Code section 7100 sets forth the order of priority – i.e., the charge first goes to the decedent’s spouse, if any, then to the decedent’s adult children, if any, then to the decedent’s parents, if still alive, and then continues down the enumerated line of succession.

What Happens if the Agent in Charge of Disposition of Remains Fails to Act?

If the agent with the right to control the disposition of remains and make funeral arrangements — or, if there is no such designated agent, the decedent’s closest living relative —fails to act or delegate his or her authority within seven (7) days from the date of the decedent’s death, then the right to control the disposition of remains and arrange for funeral services “shall be” relinquished and passed on to the person of the next degree of kinship.[3] However, if the person with the right to control the disposition of remains and funeral services is the surviving spouse, he or she is given ten (10) days after death to act before the control relinquishes to the person of the next degree of kinship.[4]

To the extent that the holder of this power (whether by means of an agency relationship with the decedent, or as the closest living relative) does not timely act to control the disposition of remains, then the person with the next degree of kinship can file a petition asking the probate court to release the remains of the decedent to their control. Moreover, if there are two individuals with equal rights to control the disposition of remains (e.g., two adult children of a decedent who died without a designated health care agent or spouse), and these two individuals cannot agree on the final disposition at death, then the funeral establishment or cemetery authority that’s in possession of the remains can itself file a petition seeking a court order directing the proper disposition of these remains.

 To simplify the final disposition process, the Los Angeles County Superior Court created a disposition of remains form that can be filed with the court as an “ex parte” application for an order directing the disposition of a decedent’s remains. Generally, “ex parte” applications are used for emergency needs on short notice. These types of filings require declarations by persons with knowledge of the facts to establish the death of a decedent, a failure to act on behalf of an agent or next of kin, and the need for an order modifying the authority to release the remains. After such a filing is submitted to the court, the court will typically rule on the matter within a few days. If there is no opposition and proper notice was provided, then the court will likely grant the release of the remains to the petitioning party, without the need for a formal hearing.

How Keystone Helped a Client Retain Her Authority as Agent, Even Though 60 Days Had Passed Without Disposition of the Remains

Keystone Law Group recently represented a decedent’s designated health care agent, whose actions regarding the disposition of remains were being challenged by her siblings. The agent was named in the medical health care directives for both of her parents, who had passed away within 10 days of each other. Upon their deaths, the agent first searched for documents and information from relatives as to her parents’ wishes.

After discussions with her family, she made the decision to have her parents cremated together, as that would have been their wish. However, most crematories will only cremate one person per day, so organizing and scheduling a simultaneous cremation of two bodies required some effort and created a delay. In addition, Keystone’s client organized her parents’ joint memorial service, created their memorial brochure, purchased the flowers, and helped make food arrangements for the service. To accommodate this joint memorial service, the cremation date needed to be further rescheduled.

As a result of these scheduling difficulties, the cremation had not occurred for almost 60 days after the decedents’ deaths, but this was through no fault of Keystone’s client. Nonetheless, her brothers filed for emergency court orders (one for each parent) to have their parents’ remains released to their authority. They claimed that the agent, their sister, had taken no action within seven days of the deaths of each parent, and as such, the court was compelled to strip her of her authority to handle the disposition of their remains.

As stated above, emergency orders require no hearing or oral arguments, unless a written opposition has been timely filed. Prior to hiring an attorney and not knowing the need to file a written opposition, the agent (Keystone’s client) arrived in-person at court to attempt to oppose these requests, but she was unable to argue her position, because the matter was not set for hearing.

By the time the agent had retained Keystone, the brothers’ request for the mother’s remains had already been granted, but their request for the father’s remains had not yet been ruled upon. Once retained, Keystone immediately filed an opposition to releasing the father’s remains to the brothers, and a Motion for Reconsideration of the order releasing the remains of the mother to the client’s brothers. The court set both matters for hearing and oral argument one week after the filings. At the hearing, the court denied the brothers’ request for authority over the father’s remains and ruled that Keystone’s client had taken appropriate steps to dispose of her parents’ remains. As such, the court allowed Keystone’s client to maintain her appointment as agent to control the disposition of the remains of her father.[5]

Thus, even though Health and Safety Code section 7105 does not permit judicial discretion in the event of an agent’s “failure to act,” the court ruled that Keystone’s client should retain her authority as agent over her parents’ remains because she demonstrated that she did, in fact, act timely – i.e., by organizing her parents’ memorial services and by attempting to coordinate their joint cremations, which were delayed through no fault of her own.

Key Takeaways: Agent Must Keep Disposition of Remains Process Moving Forward

Cremation or disposal of the remains of a loved one may not have to occur within seven or 10 days after death, but the agent/next of kin must take proactive steps within that time frame to move the final disposition process forward and maintain power over the disposition of the body after death.

Do You Have Concerns About the Proper Disposition of Remains? Keystone Is Here to Help

If you have questions or concerns about your loved one’s final disposition at death, Keystone’s probate lawyers are standing by to address them. Whether you have been appointed as the agent to control the disposition of remains and need assistance navigating your duties or you are a family member of the decedent seeking to ensure that the health care agent carries out their responsibilities surrounding the disposition of the body after death in a timely fashion, Keystone can help. Call us today to schedule your free consultation.

Sources
  • [1] Prob. C. § 4683(b)(3); Health & Safety C. § 7100.
  • [2] Prob. C. § 4607.
  • [3] Health & Safety Code § 7105(a) (emphasis added) (The wording of this statute is such that, in the event of an agent’s failure to act within this seven-day period to control the disposition of the principal’s remains, a court has no discretion but to remove these powers from the agent.).
  • [4] Id.
  • [5] Unfortunately, by the time of the court hearing, the brothers had acted upon the court order in the mother’s case and had already cremated their mother’s remains, so the court ruled that this issue with respect to the mother was now moot.