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Who Has the Right to Make Funeral Arrangements?

Posted by attorney Mark Evely

Introduction

Dealing with the death of a loved one is hard enough without having a conflict with family members on who gets to decide what for the funeral. Laws regarding the authority to make funeral and disposition arrangements vary from state to state, and this article focuses on the law in Michigan.

The Next-of-Kin Has Priority

In Michigan, the decedent's next-of-kin has the authority to control the funeral arrangements and disposition of the decedent (disposition refers to whether the person is buried or cremated and where). Figuring out who the next-of-kin is can be accomplished by referring to Michigan Compiled Laws 700.3206 and 700.2103. If the decedent is married, then his or her spouse would control. If he or she is not married, then his or her descendants (usually children) would control. If there is no spouse or descedants, then descedants of parents (usually siblings or nieces and nephews) would control. If no one acts or is available from the hierarchy set out in MCL 700.2103, then a person referred to in MCL 700.3206, such as a nominated personal representative or a guardian may act. If there is no one at the highest level of kinship that is 18 or older, then it drops down to the next level.

What if There is More Than Person With Equal Kinship

This often happens when the decedent dies with no spouse and more than one child. In this case, a majority rules. If there is a consensus of a majority of the group of highest kinship, then those decisions would control. So what happens if a majority of the group cannot agree? If a majority cannot come to a consensus, then an action can be filed in the Probate Court for the county in which the decedent lived. The law provides for a hearing to take place within 10 days of filing, and the Probate Judge will then decide after receiving arguments from the interested parties.

Can a Person with a Durable Power of Attorney Control the Funeral Arrangements?

No, not unless they are also your next-of-kin or fall within the provisions of MCL 700.3206 for when you have no next-of-kin. This is a common misconception. First, a little vocabulary: The document is called a Power of Attorney. The person granting the powers under the document is called the Principal, and the person who is empowered to act on behalf of the Principal is called the Attorney in Fact. The "Durable" part means that the Attorney in Fact can act on the Principal's behalf even after the principal becomes disabled, or unable to make his or her own decisions. It does not mean, like some people think, that the powers of the attorney in fact continue after the death of the Principal. When the Principal dies, the powers of the Attorney in Fact end.

Can I Nominate Someone Other than My Next-of-Kin to Control?

No. Although many other states allow you to appoint someone to see that your wishes are carried out, Michigan is a strict next-of-kin state, and the law does not allow you to divest the decisionmaking power from your next-of-kin.

I Put My Funeral Wishes in My Will--Must My Next-of-Kin Follow Them?

No. Even if you put your wishes in a will or pre-pay your funeral, your next-of-kin can override your wishes and decide the arrangements and disposition. The reasoning behind this law is that funerals are primarily for the benefit of the living, and so they should be allowed to decide what type of arrangements are made. That said, it is not a bad idea to put your funeral wishes in your will to act as a guide to your family members. The only circumstance where your next-of-kin cannot override your wishes is in the case where you have an agreement with a medical school to donate your body for scientific study. Even in that instance, the medical school would likely acquiesce to the wishes of your family even though they are not obligated to.

What if the Next-of-Kin Does Nothing?

There are some instances where the decedent and the legal next-of-kin are estranged or the next-of-kin does not want to excercise his or her authority for some other reason. If he or she does not exercise their right, then the power drops down to the person or persons in the next level of the hierarchy. If possible, it is advisable to obtain a written waiver from that person disclaiming their right to control the arrangements. There must be a good-faith attempt to contact the legal next-of-kin at his or her last address, phone number, or email address before proceeding. It should be noted that the next-of-kin has the power, but not the obligation to make funeral and disposition arrangements.

Does a Domestic Partner Have Rights?

No, not unless the decedent had no family (or the family members did not exercise their aurthority) and the domestic partner was nominated as the decedent's personal representative in his or her will. A domestic partner does not qualify as a spouse according to Art. I Sec. 25 of the Michigan Constitution.

Conclusion

In most cases, it is fairly clear-cut who has the authority to make funeral arrangements. However, every situation is different, and if a conflict arises or you have a question regarding your legal rights in this area, you should contact an attorney to assist you.

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