Fox Rothschild LLP

Forgive the title but this is written amidst the Eagles-Vikings game and on the same date as Queen Elizabeth’s funeral. Commentators noted that the Queen’s final event was more than a generation in the planning and was thereby accomplished with nary a hitch. If your life’s journey has produced more than one marriage, especially a first that has produced children, be aware that your exit from life could set off a war even before your will is read. In fact, today the battle over where your mortal coil will go may start before anyone finds your will.

            Pennsylvania has statutory law here. 20 Pa.C.S. 305 sets forth what happens to a person’s body where there is no will or agreement specifying your funeral arrangements. In the event a person dies while married, if there is no testamentary instruction (e.g. a will) the surviving spouse controls the transactions related to funeral and subsequent burial. Alas, there are some not so clear exceptions which might be said to swallow the rule. The section assigning exclusive power to the surviving spouse begins “Absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence……” In practical terms what this means is that your children from Marriage #1 can ignite a litigation bonfire by filing in court allegations that at the time of your death you and your widow were estranged or that your wife is incompetent. Understand that the goal of a prompt and respectful funeral could well be delayed while a court tries to sort through who decides your funereal fate.

            The problem is no better in a setting where you die while unmarried. There, the statute says that your “arrangements” will be decided exclusively by your “next of kin.” But the same language about estrangement and incompetence is employed, leaving the door open for any of your children to file an assertion that one or more of their siblings is “incompetent” or “estranged” from you. Think about how much you aspire to have your children standing outside  a local court screaming at each other about who loved you more or whether your middle child is “crazy” (the angry layperson’s term for “incompetent.”). By the way, the Court is given authorization to appoint an attorney in fact (essentially an agent) to decide how you will be “managed” posthumously. Your estate will compensate that person as an expense.

            The statute also has what can be best termed “tie breaker” provisions. If you have no wife but two children and they disagree, the court is to side with the child who is closest to you. If you have three children and they don’t agree, your funeral will be planned by “popular vote” which is to say the majority rules. Realize that a child who really doesn’t care between something like cremation versus burial may be able to gain some other advantage by casting a vote to break the tie. That form of agreement is probably illegal but there is no reversing cremation and most decedents would not want to be exhumed only to be transported to a crematorium.

            We make light but the topic is a……..serious. Hopefully, your surviving spouse or your kids from one or both marriages would want to do the right thing. But the death of a spouse or parent often unleashes anger or resentment that has been brewing for years and we are hearing reports that surviving family members don’t have the common sense to assure the deceased a decent burial.

            So, there are solutions. When planning your estate, follow the Queen’s sound practice of deciding in advance what you want and who should be engaged to do it. You don’t have to decide whether the music should be Rare Earth or Frederic Handel. But you do need to set forth the basics of how your body will be disposed of from the place of your death to final disposition in terra firma or on the mantel of your ex-spouse’s living room. Make certain that the lawyer drafting your estate plan has that plan and get a copy to the people you engage to actually dispose of your remains. Be smart and select the family member you think can most reliably manage your funeral. Your may love your current spouse and your kids from the earlier marriage but if there is a favored cousin who can navigate the management of your funeral so that contentious people are not in the same room, you are doing all your family members an immense favor and the funeral director will be overjoyed that he or she is not having to mediate your service and disposition. The more likely the prospect of controversy, the more precise your directions need to be or just prepare a document that your cousin in Cincinnati has plenary authority make all arrangements so long as there are no Bengals mascots invited to the luncheon. This really is a favor you can do for all in the extended family and for it you will have the enduring gratitude of the judiciary and the funeral industry.

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