Casket V Cremation - Who Decides?

By: Marty Bodnar

Family disagreements often occur concerning funeral arrangements and the disposition of their loved one’s body or cremated remains. Until recently, if there was no surviving spouse, the decision rested on the majority of decedent’s living children.

Now, in Michigan, an individual can designate a funeral representative in a document separate from a will or power of attorney. The designation must be witnessed by two people or notarized. A properly designated funeral representative has priority over all family members, including a surviving spouse, although the surviving spouse can be designated as the funeral representative. It is also possible to name a funeral representative and one or more alternates in the same designation. Since the new law allows a separate designation form, it is advisable to make a designation because powers of attorney terminate on death and wills often contain information that individuals may not wish to share with funeral directors.

If there’s no funeral representative, the order of priority for who makes funeral decisions is set by the law like this:

(a)    If the decedent was a service member at the time of their death, a person designated to direct the disposition of the service member’s remains according to a statute of the United States or regulation, policy, directive, or instruction of the Department of Defense.

(b)    A funeral representative designated under subsection (2).

(c)    The surviving spouse.

(d)    Subject to subdivision (e), the individual or individuals 18 years of age or older in the following order of priority:

(i)    The decedent’s children.

(ii)    The decedent’s  grandchildren.

(iii)    The decedent’s parents.

(iv)    The decedent’s grandparents.

(v)    The decedent’s siblings.

The amended law permits an individual to name someone who makes the decision regarding his or her remains. It doesn’t mandate the funeral representative to follow the decedent’s wishes. In other words, the decedent may have expressed a wish, in writing or verbally, to be cremated and the funeral representative can still make other arrangements.

The funeral representative may wind up in an awkward position if there’s a disagreement within the family because the new law places the responsibility for payment of funeral and burial expenses on the funeral representative. If funds aren’t available from the estate or from insurance proceeds, the funeral representative may be reluctant to serve in that capacity. 

Even though the new law may not be perfect, you may want to consider it! If you’re concerned about disagreements within your family at a time that can be quite stressful. Our attorneys for elder law in Ann Arbor can help you with this and other estate planning needs. Call (734) 665-4441 today for a no obligation consultation