This is problematic. The funeral home does not want to be sued by the wife for allowing someone else to make the arrangements. The decedent could have made this easy by leaving appropriate estate planning. Most states have laws providing that the Personal Representative, (executor or administrator) can make funeral arrangements. You should discuss this with an attorney to see if this would solve your problem. My guess is that it would. You will still need to diligently try to locate the spouse, as, in the absence of a Will, she would be the primary beneficiary of the estate. There could be spousal abandonment issues, as well. Check with an attorney before proceeding.
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Funeral homes make their own rules to avoid liability. Ask what they would need to allow cremation. Also contact other funeral homes in the area. They may have different policies. As Attorney Frederick points out, it's possible that the Funeral Home will respect the instructions of a Personal Representative, so this may be an option. Good luck.
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There is a section in the Tennessee statutes that provides the following:
"(a) The operator of a crematory facility is not liable for damages in a civil action for any of the following actions or omissions, unless the actions or omissions were made with malicious purpose, in bad faith, or in a wanton or reckless manner:
(1) Having performed the cremation of the decedent, or having released or disposed of the cremated remains, in accordance with the instructions set forth by the decedent or an heir or personal representative of the decedent...." T.C.A. sec. 62-5-511.
That section may help you with the situation you describe. HOWEVER, my fellow attorneys are correct in their responses. You need to speak with the funeral home director regarding your options, and you may still need to have a court order or other official court documents certifying the sister as a personal representative.
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