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Use of Funeral Directives in Estate Planning

03.11.15 written by

When a family member dies, a funeral director is a very important person and holds a very special relationship with the decedent’s family.  A death sometimes creates family conflict, and the funeral director finds himself or herself in the middle of this family conflict.  This conflict can occur when making decisions about calling hours, clothing, casket, flowers, and other funeral services.  Sometimes this conflict has existed among the family members for years and the death of a loved one has brought it to the forefront.  Before October 12, 2006, the law in the State of Ohio provided that when an individual passed away, there was an order of priority as to who the funeral director should listen to regarding the above issues.  For example, the spouse was first, and then all of the children had an equal amount of authority after the spouse.  If the children could not agree on the above items, then the funeral director was put in a tough situation concerning those issues.

After October 12, 2006, the law in the State of Ohio is clear as to who the funeral director should listen to regarding all of these issues.  That was the effective date of a new law, which is in Ohio Revised Code Section 2108.70 and titled “Assignment of Rights Regarding Disposition of Remains.”  Under this law, an adult who is of sound mind may execute a written declaration assigning the following rights to an individual: 

  1. The right to direct disposition, after death, of the decedent’s body.   
  2. The right to make funeral arrangements and purchase goods and services for the decedent’s funeral.
  3. The right to make arrangements and purchase goods and services for the decedent’s burial, cremation, or another manner of disposition.

This law also provides for the ability of an individual to name a successor individual who can make these decisions as well if the initial individual is not able or is unwilling to make these decisions.  If you have not executed a Funeral Directive, then the order of priority mentioned above will apply.  There was one actual example I am aware of where a father passed away without a Funeral Directive and with two children surviving.  The two children could not agree on a number of funeral items and ended up having two funerals to accommodate both children’s wishes.

The passing of a loved one is a very stressful time.  This Ohio law allows an individual to make sure that they have someone named who can break the tie in a family conflict and make various decisions concerning their funeral and the disposition of their remains upon their passing.  This becomes especially important when the decedent’s family members cannot make a decision or are not getting along. 

Please make sure that you have executed a Funeral Directive as part of your estate plan naming an individual who can make these funeral and disposition decisions in order to avoid providing a tie-breaking mechanism to avoid family conflict. 

NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.

James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663