Blogs from May, 2010


Who Decides?

In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases were a couple of the more publicized disputes that with the help of elder law lawyers, the media and judges got turned into a three-ringed circus.

As of October 1, 2005, the Florida Legislature established new law, amending Fla. Stats. Ch. 470 and Ch. 497, which govern the funeral and cemetery industries. Under this new law, a “legally authorized person” will make these difficult decisions. Under Fla. Stat. § 497.005, there is now a list of “legally authorized persons” and their various priorities. The first person with priority is the deceased person himself or herself. The decedent may decide, through inter vivos directions, what happens with his or her body after death. However, this may or may not include directions in a Will, which are not inter vivos, but testamentary in nature. Case law in this area seems to indicate that a decedent has a right to testamentary disposition of his or her body and more often then not, Courts are guided by the wishes expressed in a person’s Will or Trust.

The second “legally authorized person” with priority is the surviving spouse, followed third by a son or daughter who is at least 18 years old. Some estate lawyers believe this is contrary to the Florida Probate Code, which provides that the heirs of an intestate decedent (without a Will), are the surviving spouse, who is entitled to at least one-half of the Estate, and the lineal descendants (children, grandchildren, etc.) the other half. Whereas, Fla. Stat. § 497.005 (37) treats the Decedent’s body differently, giving the surviving spouse sole priority in the absence of any written inter vivos directions. However, there’s a potential argument that estate lawyers have made on behalf of the children under Fla. Stat. § 406.50, dealing with unclaimed bodies, which states, “In the event, more than one legally authorized person claims a body for internment, the requests shall be prioritized in accordance with s. 732.103.” Fla. Stat. § 732.103, states: “The part of the intestate estate not passing to the surviving spouse under § 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows: (1) to the descendants of the decedent. . . .” Thus, probate lawyers have argued that if more than one person claims a body, the spouse may not have priority, and the children are the ones who get to make the final decisions. As a result of this confusion, the Courts are left to decide who ultimately has priority.

According to the Florida Supreme Court in Crocker v. Pleasant, 778 So.2d 978, 985 (Fla. 2001), in the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has a “legitimate claim of entitlement” to possession of the body of a deceased person for the purpose of burial, sepulture, or other legal disposition as the surviving spouse or next of kin see fit.  In the event a dispute arises among the interested persons, the trial court may take evidence regarding the Decedent’s oral statements as to his or her wishes, even going so far as to disregard testamentary burial instructions when a decedent has expressed a contrary intent to that set forth in a Will or Trust subsequent to its execution. See Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005). The evidence regarding the Decedent’s oral statements must be contrary to the written testamentary wishes and convincing that a change in intent occurred.  For courts to entertain these types of alleged oral statements by the decedent as evidence, provides a new forum to implement near-death burial instructions that may have developed beyond the original earlier wishes.

For example, in Arthur v. Millstein, 949 So.2d 1163, 1166 (Fla. 4th DCA 2007), the appellate court determined that there had been sufficient evidence presented to establish it was Anna Nicole Smith’s intent to be buried in the Bahamas next to her adult son who predeceased her. Although she had a Will, it did not contain her wishes as far as the disposition of her remains, and the trial court, in its ruling relied on the interpretation of “legally authorized person” as defined in Fla. Stat. § 497.005 (37). The appellate court determined that while the result was correct, the reasoning was incorrect, and it was the clear and convincing evidence of Anna Nicole’s expressed intent that controlled. As a result of this decision, it appears that when disputes arise among family and loved ones over the disposition of the body of a deceased person, the Court will attempt to comply with the written, or clearly expressed intent of the Decedent. In the absence of such clear or convincing evidence, the spouse tends to have priority, followed by the children, then parents, brothers, and sisters, grandchildren, grandparents, and any other person in the next degree of kinship.

Most Recent Posts from May, 2010