final wishes: who decides?

When a loved one passes away, decisions must be made with respect to funeral arrangements and the final disposition of remains. This can be made all that more difficult if your loved one doesn’t have a will or hasn’t appointed an agent to make these final decisions.

A common scenario is when a parent has passed and the surviving spouse later finds companionship with a longtime domestic partner. That parent then passes and there is a question as to what her final wishes were. The surviving children believe mom wished for a traditional burial, but her longtime partner is moving ahead with plans for a cremation insisting that’s what they had talked about.

What if the children cannot agree with mom’s partner? You might be surprised to learn that there is a statute here in New York that prioritizes the direction of the decedent’s domestic partner over that of the surviving children.

New York State law provides a list of priority for those who have decision-making authority with respect to the disposition of remains. First in line is the individual designated in a written instrument, such as a will. If there is no such written designation, the order is as follows: first, the decedent’s spouse, then the decedent’s surviving domestic partner followed by any surviving children. The list continues from there.

Children of a deceased parent can be in for a shock when they find out that mom or dad’s long-time companion potentially wields the power to make final decisions for the disposition of their remains.
Identifying who qualifies as a domestic partner can be tricky. In the event there are any disputes as to who the proper authorized decision maker is, the statute provides for a speedy resolution through a special proceeding.

The best course of action is to be sure your wishes are memorialized in writing. This can be done through your will or by executing a document that names a Final Disposition Agent and specifically directs that person how to carry out your final wishes.

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