James M. Weaver, PA

Disposition of Remains – Who Decides?

Probably the spouse. Even where there was a judicial separation, the spouse determined disposition over the decedent’s remains, despite the objections of the children. Andrews vs. McGowan, 739 So.2d 132 (Fla. 5th DCA 1999).

If there is no one who claims the decedent’s remains or if there is no one who is not legally responsible for burial, then the county is responsible.

What if the Deceased sets out burial/cremation disposition in the Will (always a bad place to put those instructions), then there is a later change of mind? Do the Will’s written instructions prevail or can the Decedent’s subsequent testimony and oral direction control? Yes, you can change your mind with oral instructions. Cohen vs. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005).

Moreover, it probably won’t help to leave your burial instructions in your Will. The will of Franklin D. Roosevelt, a lawyer and even a U.S. President, laid out specific instructions in his Will for his funeral ceremony and burial. Unfortunately, the Will was reviewed only after he was laid to rest.

If it can happen to the President of the United States, there is at least a fair chance that it can happen to you and me. Tell your personal representative. Tell your spouse. Tell your children. Write them letters, etc.

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