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Can deceased man's family have his body cremated according to his verbal wishes? Wife abandoned yrs ago, can't be located.

Savannah, TN |

Funeral Home will not allow only sister/primary caregiver to have deceased brother cremated. Deceased has spouse who cannot be located and has not seen in two years. There are no other siblings, no children, or parents. Deceased was under Hospice care and died at home due to cancer. He expressed his wishes to be cremated to his sister. There is no will and no POA documented.

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Attorney answers 3

Posted

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.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

Posted

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.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

Posted

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.

If this answer is helpful, please click that option. This response is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the answers by the named attorney do not create an attorney-client relationship between said attorney and the user or browser.

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