Upon a person’s death, loved ones often disagree as to the proper disposition of the remains. I have had more than one panic phone call stating “My brother is having my mother cremated and I don’t want him to.”
It is vital to a proper estate plan to make appropriate arrangements for your remains. I find that a failure to properly plan these issue can lead to family strife and, at times, litigation.
Both Utah and Nevada law give preference to the properly expressed wishes of a decedent. In Utah, burial instructions may be made in a will or separate legal directive (often executed when making advace funeral arrangments), stating the name and address of the decedent, the decedent’s wishes, the decedent’s signature, the signature of two unrelated witnesses, and the date the document was executed. Similarly, in Nevada, a person may execute a will or other directive to establish burial instructions.
If no instructions are left by a decedent, the law generally provides a plan of priority as to who may order the burial or cremation. In Utah, absent a written instruction, the following order of priority applies: (1) Surviving Spouse, (2)majority vote of surviving children over 18, (3)unanimous consent of surviving parents, (4) next of kin, (5) public official charged with disposition of deceased persons. You can see the obvious flaws in this imperfect system. What if the kids do not agree and are evenly divided? What if only one surviving parent consents to cremation? Does it then fall to a next of kin to make the decision?
Nevada law follows a similar system of priority, absent a writing, as follows: (1) The surviving spouse, (2) An adult son or daughter (former law required a joint decision), (3) either parent (former law required parents jointly), (4) Adult brother or sister, (5) a grandparent, (6) a guardian, (7) a person who held the primary domicile with the decedent as a joint tenant (i.e. unmarried partner.) The Nevada system went away from a majority vote of children to “an adult child.” This seems to invite panic among siblings.
This is a situation where the legislators have done the best they can with a difficult situation. Many familial problems can be solved by properly designating your burial instructions in your estate plan and/or making advance arrangements with a funeral home.