During Divorce, Who Controls Funeral Plans?

This column first appeared in the San Antonio Express-News on September 29, 2015.

2015-09-29Dear Mr. Premack: My husband and I have been married for over 45 years, and he has filed for divorce. We’ve had many disagreements, but oddly the last straw seems to have been over funeral planning. I desire that my remains be cremated, but my husband is adamant about having traditional interment at Ft. Sam. He says that the bible does not allow cremation, and he won’t honor my wishes. I am happy to honor his, but now he’s filed for divorce. So, how can I be assured that he won’t be able to interfere with my wish to be cremated? – B.R.

First, have you and your husband tried marriage counseling? Leaving a marriage of 45 years is in itself traumatic, but will have far reaching financial and emotional impact. Counseling may help. Further, since your husband is partially motivated by his interpretation of religious text, it may help to talk with his pastor. If your husband’s perception of religious restrictions is inaccurate within his own sect, his pastor may help to put him onto the correct path.

The legal and practical side of this question is that you have the right to whatever type of funeral arrangements you personally desire. If you handle this situation carefully, the law will enforce your personal choices. Your husband’s religious interpretations should not be imposed upon you if they do not match your own desires, whether your personal choices are based on religion or lack thereof.

The law does, however, allow your husband to be in charge of your funeral arrangements and to impose his own practices unless you take legal action to make your own wishes enforceable. Under the Texas Health and Safety Code (which also deals with funerals) there is a list of people who have the right to control disposition of a decedent’s remains. The list begins with 1) “the person designated in a written instrument signed by the decedent”, and continues with 2) the surviving spouse.

Do not assume that just because he has filed for divorce he has given up his spousal rights. If you die while the divorce is pending, he is still your surviving spouse and can control disposition of your remains. His status as spouse changes only on the day that the final decree of divorce is entered and the marriage is officially terminated. Until that day, you must act to protect yourself.

What steps should you take? Visit your Elder Law Attorney to:

  1. Prepare and sign an “Appointment for Disposition of Remains” pursuant to section 711.002 of the Health and Safety Code. In this document, you are allowed to declare exactly how you want your remains to be handled, including cremation. You are allowed to identify exactly what person (agent) has authority to carry out your instructions (and to select one or more alternate agents in case your first choice becomes unavailable). When you have completed and signed your Appointment document, each of the agents you have selected should also sign it. The agent who will ultimately handle your funeral is required to sign it before any authority vests in that person. You should also prearrange and prepay for your cremation. Since the agent must agree to pay for your disposition, prepaying will relieve the agent from personal liability for the costs of your funeral or cremation.
  2. Change your Will. It may still leave all of your estate to your husband. Do you desire to do so now that he has filed for divorce? Change your Durable Power of Attorney. It may currently give your husband power to move your assets in a way that would harm you. Change your Medical Directives. You may not want your estranged husband to be in charge of your health care issues should you take ill. Do these things immediately if not sooner!

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

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