Who Controls What Happens To My Body When I Die?

Family disagreements often arise after the passing of a loved one. The emotional turmoil and stress of losing someone can sometimes lead to misunderstandings and conflicts among family members.

This is something you want to get sorted before then!

You may not realize that in the State of Texas, there are laws regarding who has the right to control what happens to you after you die, from the method of disposition (cremation or burial are the most common) to the grave plot and tombstone if desired. The good news is that you can set this all up yourself before you pass so there is no doubt who is in charge when that day comes. The statue that addresses this is the Texas Health and Safety Code, Title 8, Subtitle C, Chapter 711 Subchapter A Section 002.

According to the statute—

…a person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person. A party to the prepaid funeral contract or a written contract providing for all or some of a decedent's funeral arrangements who fails to honor the contract is liable for the additional expenses incurred in the disposition of the decedent's remains as a result of the breach of contract. The directions may govern the inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and in which plot the decedent is subsequently interred. The directions may be modified or revoked only by a subsequent writing signed and acknowledged by such person. The person otherwise entitled to control the disposition of a decedent's remains under this section shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so.

If you do not leave written instructions in a form allowed by law, there is even a section of the statue that lines out the list of people, in order, of who is legally in charge of your body. It can get complicated, so use this list as a guide, confer with a licensed funeral director or pre-need funeral counselor, or your attorney.

1. Person Designated by the Decedent

If the deceased made a written, signed, and notarized directive designating someone to control the disposition of their remains, that person has the top priority. This is often outlined in a legal document such as a Disposition of Remains document or other legal document as listed in the statute referenced above.

2. Spouse

The surviving spouse of the deceased is next in line.

3. Adult Children

If there is no surviving spouse, any one of the deceased’s adult children share the right.

4. Parents

If there are no adult children or spouse, either of the parents of the deceased have the authority.

5. Siblings

If no parents are available, any one of the adult siblings of the deceased have the right.

6. Any Duly Qualified Executor or Agent of the Estate

If no one was designated specifically for the disposition of remains, the executor named in the deceased’s will or an agent named in a durable power of attorney has the authority.

7. Next Closest Kin

If none of the above individuals exist or are available, the right falls to other next-of-kin in order of inheritance under Texas laws of descent and distribution.

8. Personal Representative or Responsible Person

The law provides for time limits to accept responsibility and if someone with the right to control cannot be found within the time period or if they refuse the responsibility, the right falls to another person in the same priority class of the person or in a different priority class in order of priority. If no family members or legal representatives exist, the funeral home director or other person who has custody of the body may make decisions regarding the disposition of remains.

9. State or Local Authorities

In rare cases where no one claims the body, the responsibility falls to the county or state government.

Important Notes:

• If a United States Department of Defense Record of Emergency Data, DD Form 93, or a successor form, was in effect at the time of death for a decedent who died in a manner described by 10 U.S.C. Sections 1481(a)(1) through (8), the DD Form 93 controls over any other written instrument described by the statute, with respect to designating a person to control the disposition of the decedent's remains. This form is legally sufficient if it is properly completed, signed by the decedent, and witnessed in the manner required by the form.

• If there is a disagreement among the individuals with equal rights (e.g., multiple children or siblings), Texas law generally requires the majority to agree on the disposition.

• Legal challenges can arise, and a court may need to make a determination if disputes occur.

It’s always advisable to have clear, legally binding directives in place to assure your wishes are honored and to avoid disputes that may arise after your passing.

And remember, we are providers of services to honor and memorialize the dead; we are not attorneys. This post is a guide, not legal advice. We strongly suggest you confer with a licensed funeral director or pre-need funeral counselor, or your attorney.