Understanding Who Has the Legal Authority to Make Funeral Arrangements

When a loved one passes away, there are many details to attend to and choices to be made. The planning for funeral arrangements alone usually requires more than 100 decisions, such as:

·       Burial or cremation

·       Whether to hold a funeral, memorial, or celebration of life

·       Whether the service should follow religious or cultural customs

·       Choosing the location for the services

Unless the departed specifically expressed their funeral wishes in advance, the authority for making these decisions depends on state laws that are based on familial relationships. In some situations, the party responsible for making decisions about the funeral can be unclear and even contested.

In this article, we will explain the legal order of who has the right to make funeral arrangements.

Honor the wishes of the departed first

If the deceased designated someone to make choices regarding their disposition, that preference must be honored. This designation may have been made in a Last Will and Testament, a Living Will, or another properly executed legal document, such as an Authorization for Final Disposition. If the deceased didn't make any preferences legally known, then the decision falls to the nearest living relative, known as the ‘next of kin’ (NOK). The Next of Kin hierarchy is followed until someone who is able to make these decisions can be found.

Follow the Next of Kin Hierarchy

To qualify as next of kin in this situation, the individual must be over the age of 18. The relationships indicated typically apply equally to biological, adoptive, half-, and step-relations.

1.     Spouse: Legal authority falls to the spouse or domestic partner if they are living and able to perform funeral arrangements. This person is also able to make decisions about the disposal of the body and the choice of burial or cremation. They are to refer to the wishes of the departed if they are reasonable. 

2.     Adult children: If there are several adult children, most states require them to work together in some way. The majority decision of the adult children rules. If an agreement on the funeral and estate is not reached, the matter could go to probate court. 

3.     Parents of the deceased: While most parents don’t want to think about planning their adult child’s funeral, it is sometimes necessary. Parents step in with legal authority if there is no living spouse or children.

4.     Siblings: If the parents are no longer living or if they are unable to perform the duties involved in funeral preparations, siblings then have authority. Similar to adult children, in situations where there is more than one sibling, the majority rules.

5.     Next of kin: If no siblings exist, funeral arrangements then go to another family member. This could be a grandparent, aunt or uncle, niece or nephew, cousin, etc. Some states allow close friends to step in as the next of kin.

6.     If there's no next of kin: Sometimes people die without any family and are considered to have no next of kin. In this case, the county offers its services. They first attempt to locate any family or legal documentation that may outline funeral preferences. If none is found, the county's Social Services Department steps in to handle the necessary arrangements. 

Especially in cases where there are disjointed families or disputes over cultural, religious, or geographic differences, coming to an agreement about who has the right to control funeral arrangements can be challenging. This hierarchy exists to remove some of the questions and to make this stressful time a little bit easier for surviving family members. The best way to avoid disputes and questions is to prepare your funeral wishes in advance.

Planning a loved one’s funeral is an emotional task. Our goal is to make you as comfortable as possible and assist you with the decision-making process. We are always available to answer any questions you may have, so please contact us anytime.

About Vaughn Greene Funeral Services: For more than 20 years, Vaughn Greene Funeral Services has been providing a ministry of care to Baltimore’s African American community. As a leading local, minority- and family-owned provider, we promise to provide our highest level of service and respect to families who entrust us to honor their loved ones. For more information, please call us at 410.655.0015 or visit us online at https://vaughncgreene.com/.