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Disposition of Remains May Create Tug-Of-War

Question

Sorry this is such a gruesome topic, but unfortunately my husband is dying of cancer. His adult children from a previous marriage want his remains to be buried at Oak Hill. My husband and I say his remains should be cremated and spread over the Pacific Ocean. Who has legal authority to make this decision?

Brenda B.
Almaden Valley

Dear Brenda:

Although some of our readers may view this question as a bit gruesome, it's an important one. Fortunately, we have some answers that are contained in California Health and Safety Code §7100.

§7100 pertains to the right to control the disposition of the remains of a deceased person, the location and conditions of interment, and arrangements for funeral goods and services to be provided. (Of course, certain exceptions apply.)

Generally speaking, the duty of disposition of the remains and the liability for the reasonable cost of the disposition of the remains devolves upon the following in the order named.

First of all, if the decedent has left written instructions, they are to be followed(§7100.1).

The next priority is the agent named in a power of attorney for health care(§7100). (Note: everyone should have one of these, now called Advance Health Care Directive.)

After any such agent, the next priority is the competent surviving spouse.

If there is a sole surviving competent adult child of the decedent, he or she would be the next priority. If there is more than one, then a majority of the surviving competent adult children.

The next in order is the surviving competent parent(s) of the decedent.

One would then look to the surviving competent adult person(s) in the next "degrees of kindred", i.e. relatives.

After that, which would be a rare case of course, would come the public administrator.

And there are special provisions that apply if the person named to make these decisions has murdered the decedent or has been charged with voluntary manslaughter.

"Adult" is defined as an individual who has attained 18 years of age. "Child" means a natural or adopted child of the decedent, and "competent" means an individual who has not been declared incompetent by a court of law or who has been declared competent by a court of law following a declaration of incompetence.

If you are interested in reading more about this California law, log on to www.findlaw.com. Click on "Laws:Cases and Codes." Click on "US State Laws," and then "CA Codes and Statutes." Click on "CA Codes" and below keyword, click on "List of Codes." Scroll down to and click on "Health and Safety Code." Scroll down the chapters to "Division 7 Dead Bodies" and click on "7100-7117."

What's the best way to avoid a family fight and a tug-of-war? It seems to me, Brenda, that the best thing to do is for your husband to have his wishes expressed clearly in writing and then to share that information with his entire family. Finally, it seems to me that an Advance Health Care Directive is very important.