It’s true. We have had several situations where someone died and their surviving family members did not agree on what to do with their bodily remains: Bury? If so, where? Cremate? If so, what should be done with the ashes? Funeral or memorial service? Religious or secular? If a decedent’s end-of life wishes are unknown, at a time when the family should be coming together to support each other in grief, they may instead be dredging up and re-hashing decades old conflicts to “win” the dead body and dispose of the remains the way they see fit. All the while, the deceased remains in a morgue.

These conflicts can be avoided by simply appointing a funeral agent. The best-case scenario would be to both appoint a funeral agent and provide directions for them to follow. If no one is appointed as the funeral agent, New Jersey law provides a hierarchy of people (referred to as “priority classes”) who get to make that decision:

1. The surviving spouse of the decedent or the surviving civil union or domestic partner.
2. A majority of the surviving adult children of the decedent.
3. The surviving parent or parents of the decedent.
4. A majority of the brothers and sisters of the decedent.
5. Other next of kin of the decedent according to the degree of consanguinity.
6. If there are no known living relatives, a cemetery may rely on the written authorization of any other person acting on behalf of the decedent.

The first one is easy, if there is a surviving spouse, civil union or domestic partner, that person makes the decisions. However, conflict usually arises when it gets down to the second, third or fourth priority class and there is an even number of survivors in that class. In that case, the court must decide who will make funeral and disposition decisions. This will be both expensive and time-consuming as your survivors argue over what they think you would have wanted. Worse, it may ultimately result in a funeral that is not at all what you would have planned for yourself. This is why we always recommend that clients make their wishes known as clearly as possible. At the very least, you should appoint someone to make those decisions, and be sure to tell them what you want. This will provide peace of mind to you and avoid a conflict among your surviving family members.

If you have questions about funeral agents, or any other estate planning topics, please call Justine at (973)376-7733, or send her an e-mail (justine@manesweinberg.com), and she will schedule a time for you to speak to someone on our Estate Planning and Estate Administration Team.