New Bill Affecting Disposition of Remains

August 25, 2005

A new bill has passed through both houses of the New York State legislature last week relating to the rights of certain individuals of a decedent to control the disposition of such decedent’s remains regardless of whether of a written document exists. The bill creates a priority list of those persons who may have the right to control the disposition of the decedent’s remains if no written instrument specifies. In other words, the bill creates a list of people who can carry out their loved ones’ burial wishes, whether it be a cemetery burial, cremation, or even donating the body and organs to medical school.

One major part of the bill gives domestic partners the same priority status as surviving spouses. The bill defines domestic partnerships using three categories. First, a domestic partner is anyone who is formally a party in a domestic partnership under the laws of the United States or of any state, local, or foreign jurisdiction. Second, if there is no formal domestic partnership, then the surviving partner must be formally recognized as a beneficiary or covered person under the other partner’s employment benefits or health insurance. Lastly, if the partners do not meet either of the previous two requirements, they would have to provide documentation for proof of six months of cohabitation to show dependence or mutual independence on the other partner for support, indicating a mutual intent to be domestic partners.

The proposed order of people who will have the right to control the disposition and the costs associated are (l) the person designated in a will or other written instrument (such as a proxy); (2) the decedent’s surviving spouse or domestic partner; (3) any surviving children over 18 years old; (4) either of the decedent’s surviving parents; (5) any of the decedent’s surviving siblings; (6) a guardian; or (7) a fiduciary of the deceased’s estate.

The bill also creates a standard proxy form authorizing the appointment of an agent along with a space with special directions. The proxy is important because although a person can specify her wishes in a will, wills are not generally probated until long after death wheras disposition normally happens within a week after death. Overall, this bill fills an important gap in health law by allowing people to plan ahead to ensure their wishes are carried out at their time of death without any confusion and court proceedings over the very private matter of disposition of their remains.