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Disposition of Remains, Responsibility Therefor

New York Public Health Law 4201 effective 8/2/06 sets forth the order of priority of persons who are able to dispose of the remains of a decedent. Prior to this law it was basically entrusted to the closest relatives living, provided they were not purposely going against the wishes of the decedent, as proved by another person. This would sometimes cause litigation between domestic partners and relatives who conflicted over the wishes of the decedent.

This law now gives specific instructions as to who has the right to dispose of the decedent’s remains. Absent a written instrument as specified in the act (or a will specifically directing the disposition by an executor), the following persons (over eighteen years of age), have the right in descending order:

1. the decedent’s surviving spouse.

2. the decedent’s surviving domestic partner.

3. any of the decedent’s surviving children eighteen years of age or older.

4. either of the decedent’s surviving parents;

5. any of the decedent’s surviving siblings;

6. a guardian appointed pursuant to article seventeen or seventeen-a of the surrogate’s court procedure act or article eighty-one of the mental hygiene law; or

7. a duly appointed fiduciary of the estate of the decedent.

Hence, now a domestic partner, absent a surviving spouse or written agreement stating otherwise, will be able to direct the disposition of the deceased’s partner’s remains. A domestic partner means a person who, with respect to another person:

1. is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or any state, local or foreign jurisdiction, or registered as the domestic partner of the person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or

2. is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or

3. is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under subparagraph (i) or (ii) of this paragraph; or the length of the personal relationship of the persons.

It is important to consult an attorney when delegating the authority to someone to dispose of one’s remains. No one wishes to think about this while they are alive, and when death is imminent, it is usually too late to arrange for proper preparation and signing of documents. In circumstances where different family members have different opinions on what should happen after death, it is important to make your individual wishes known, in writing and appointing someone you trust to make those decisions.

In preparing any type of estate document, a lawyer will be able to advise you regarding the law. What people who try to save money and buy will kits or download forms off the internet don’t realize is that wills require proper signing and witnessing in a “will signing ceremony” supervised by a lawyer. If this is not done properly, the entire will is subject to being denied by the Surrogate’s Court. If supervised properly by an attorney, the will is presumed valid, and difficult to contest by disgrunted heirs. In providing for the disposing of your remains, a lawyer can protect your rights as well.

Cynthia M. Burke,

Categories: Estate Law