Right of Disposition (Who has the right to do it)

What happens after you die?  Theological doctrines aside, many people are unaware of Louisiana law concerning who is responsible for a decedent’s remains after he or she dies.  Most people are aware that after a loved one dies, his or her estate needs to be administered, usually by means of probate in a Louisiana court.  However, before probate occurs, dealing with the funeral and more immediate concerns need to be addressed.

1.      §655. Right of disposing of remains; military personnel; limitation of liability

2.                  A. Unless other specific directions have been given or the designation of a specific person to control disposition has been made by the decedent in the form of a notarial testament or a written and notarized declaration, the following persons, in the priority listed, have the right to control and authorize the interment of a deceased person, as defined in R.S. 8:1:

3.                  (1) The person designated to control disposition by the decedent in the form of a notarial testament or a written and notarized declaration.

4.                  (2) The surviving spouse, if there is no pending petition for divorce filed by either spouse prior to the death of the decedent spouse.

5.                  (3) A majority of the surviving adult children of the decedent.

6.                  (4) A majority of the surviving adult grandchildren of the decedent.

7.                  (5) The surviving parents of the decedent.

8.                  (6) A majority of the surviving adult siblings of the decedent.

9.                  (7) A majority of the surviving adult persons respectively in the next degrees of kindred as established in Civil Code Article 880 et seq.

10.              B.(1) Notwithstanding the provisions of Subsection A of this Section, if the decedent died in a manner described by 10 U.S.C. §1481 (a)(1) through (8) while serving in any branch of the United States Armed Forces, the United States Reserve Forces, or National Guard, and the decedent executed a United States Department of Defense Record of Emergency Data, known as DD Form 93, or its successor form, the right to control interment for the decedent shall devolve upon the Person Authorized to Direct Disposition, also referred to as the PADD, as indicated on the DD Form 93 or its successor form.

11.              (2) There shall be no liability for a cemetery authority, funeral establishment, funeral director, crematory authority, or the employees or agents of any of them to whom a copy of a DD Form 93 is presented, purportedly executed by the decedent for conduction of the interment or other disposition of the decedent's remains, pursuant to the instructions of the PADD as indicated on the DD Form 93, or for relying on the representation of the PADD that the decedent died in a manner described in Paragraph (1) of this Subsection.

12.              C.(1) In the event that the decedent has made multiple notarial testaments or notarized declarations pursuant to Subsection A of this Section, the testament or declaration, whichever is dated last, shall control.

13.              (2) In the event that the decedent has made one or more notarial testaments or notarized declarations pursuant to Subsection A of this Section, and the decedent executed a DD Form 93 and died in a manner described in Subsection B of this Section, the testament, declaration, or the DD Form 93, whichever is dated last, shall control interment of the decedent's remains.

14.              D. Notwithstanding the provisions of Subsection A of this Section, in the event that the coroner releases the remains of the decedent to an interested person pursuant to R.S. 9:1551(A)(1), such person has the right to control the disposition of the remains of the decedent.

15.              E. In the absence of specific directions given by the decedent, if the authorization of the person or persons with the right to control disposition cannot be obtained, a final judgment of a district court shall be required.

The most common scenario for a married couple in Louisiana is that the surviving spouse will be responsible for ensuring that the deceased spouse’s body is cremated or buried, depending on the decedent’s wishes?  But what if the decedent and his spouse never addressed the issue?  Or worse yet, what if this was a second marriage for the decedent and he or she wanted to be buried next to his or her first spouse, and the surviving spouse is unaware of these intentions or does not wish to follow them?

To address the concerns people may have about the disposition of remains, the Louisiana statute provides that a person may designate in writing who will be responsible for disposing of his or her remains, and that written instrument will control over the other people listed above.  The instructions may also state how you want your remains disposed of (e.g., burial or cremation).  This document concerning disposition of remains can be useful in a number of circumstances.  As an estate planning attorney in Baton Rouge, Louisiana I have had more than one instance where relatives disagreed as to whether a deceased parent should be buried or cremated.  Each child claimed to know what the deceased parent wishes were, but there was no documentation of those desires.  Understandably, the funeral home is reluctant to take any action until it ca be assured that it will have no liability for whatever actions it takes.  In one case, this resulted in a deceased mother’s remains being located in a funeral home’s facility for over two weeks before the family could agree on what to do.  A written directive in this case would have avoided this situation altogether.

While the statue prescribes a written form for designating who will be responsible for a decedent’s remains, there are other ways to assure that your body will be dealt with according to your wishes after you die, and those wishes may be followed immediately and without regard to whether a probate proceeding is ever filed.  For example, in Louisiana you can leave written instructions in your will, or you may have a pre-paid funeral contract that controls the disposition of your remains.