When planning any kind of an event, nothing is more important than putting the right person in charge. And when the “event” is as personal and important as your own funeral, it’s essential to have it managed by someone who knows what would be meaningful—to you and the loved ones you leave behind.
So who will plan your funeral? Will it be someone who wants to honor your life appropriately and has your best interests at heart? Each of us would like to think so, but as members of the LGBT community, we need to take special care to ensure that the right person oversees our final arrangements. Stories abound of disapproving family members taking charge and ignoring the wishes of the deceased’s partner or closest friend.
As a matter of law, the authority to dispose of someone’s remains generally lies with the next of kin. If you are fortunate enough to be married, that would be your spouse. If you have a partner but are not married, he or she will have no say in the matter, unless you prepare a legal document that grants that authority.
For those of us who single, the person in charge of our final arrangements would be a parent, an adult child, or a sibling. Any one of these people could do a fine job putting a funeral together, or they could plan something completely inappropriate, leaving the guests wondering, “What were they thinking?”
It’s essential to have your funeral managed by someone who knows what would be meaningful—to you and the loved ones you leave behind.
To prevent a mishap and ensure that your friends and relations find meaning in your farewell, consider taking the following steps:
1. Have your attorney prepare an Advance Directive that authorizes your health care agent to dispose of your remains. The main reason to have an Advance Directive is to appoint someone you trust—whether your spouse, partner, or close friend—to manage your health care if you become unable to. But this document can also give your agent the legal right to be in charge of your funeral and burial.
2. Make sure your Will includes language allowing your personal representative (executor) to make your final arrangements. Just make sure you name the same person(s) in your Will and Advance Directive, in order to avoid a conflict. In addition, the Will can include some burial instructions, such as the desire to be cremated.
3. You can also make advance arrangements with a funeral home, stating your burial preferences and even paying for them ahead of time. In addition, instructions can be left with a house of worship you attend. It is especially helpful if these arrangements include a statement of who is to be in charge of overseeing the service and interment when the time comes.
4. Less effective legally, but no less helpful, is a “Burial Preferences” form, which your attorney can provide you. This form enables you to state specific details of your last wishes, including things like hymn choices, open casket versus closed, and how your remains are to be disposed of. The form may not be legally binding, but having it among your important papers will be an invaluable aid to the person you have put in charge.
5. For those of us who are coupled but not yet married, the best option is simply to get married. Marriage enables you to put the law on your side. It makes the surviving spouse your next of kin with the legal right to dispose of the remains as he or she sees fit, as well as rights of tax-free inheritance. But if marriage isn’t in the cards, an Affidavit of Domestic Partnership will, in many circumstances, authorize the surviving partner to dispose of the remains when one partner dies. An estates and trusts attorney can prepare this document for you.
One of the benefits of estate planning is peace of mind. Whether your final wishes include a traditional religious service, a secular gathering, or an informal burial at sea, put the right person in charge and take comfort in knowing that your wishes will be followed.
Lee Carpenter is an Estates & Trusts attorney at Saul Ewing Arnstein & Lehr LLP and an Adjunct Professor at the University of Maryland Carey School of Law. This article is intended to provide general information about legal topics and should not be construed as legal advice. For qualified legal counsel contact Lee Carpenter at Lee.Carpenter@saul.com or 410.332.8626.