by Donald Ray Burger
Attorney at Law

On occasion there are family disputes about how a decedent wishes his or her remains disposed. Section 711.002 of the Texas Health and Safety Code sets up three ways for avoiding and resolving such matters.

While you are living, the statute provides two ways for you to resolve how your remains will be disposed. Otherwise, there is a statutorily established priorty list of who has the right to control the disposition of a decedent's body.

First, one can leave actual written directions for the disposition, as provided in Section 711.002(g). Those written instructions can tell your family and friends whether you wanted to be buried, cremated, have your ashes scattered at sea, etc. Such written directions can be (1) in your Will; (2) part of your prepaid funeral contract, or (3) in a separate writing signed by you and acknowledged (notarized). The instructions may also govern any inscription you want placed on your grave marker. Section 711.002(g) instructions can only be revoked by a subsequent writing signed by you and acknowledged (notarized). If the directions are in a Will, they shall be carried out without the necessity of probate. If the Will is not probated, or is declared invalid for testamentary purposes, the directions are valid to the extent they were acted on in good faith. 711.002(h).

The person otherwise entitled to control the disposition of a decedent's remains under 711.002 (a) 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. The six category order of priority established by statute of the persons "entitled to control the disposition of a decedent's remains" is set out at 711.002 (a). That order is discussed below.

Having a "stand-alone" document that provides written directions for the disposition of your remains has several advantages over providing such directions in your Will. Such a document can provide detailed instructions for the disposition of your remains and you can freely show it to your relatives. You may not be as comfortable showing your Will, which covers many subjects not covered in such a stand-alone document. Also, the funeral establishment or business operating a crematory, etc., may want proof of your wishes. It is better to show them a stand-alone document rather than your Will, much of which will be none of their business. Further, you may revise your Will from time to time, and many lawyer's forms do not include burial instructions. Thus, there is the possibility that even if the burial instructions are in one Will, they may not be carried forward to a subsequent, especially if you have changed lawyers.

The second way you can control how your body is disposed is by executing an "Appointment of Agent to Control Disposition of Remains." The requirements of such a form are set out at 711.002(b). Such Appointment of Agent must be signed by you and acknowledged before a notary public. It must also be signed by each agent and successor agent you appoint.

In the absence of 711.002 (g) written directions, the following persons, in the priority listed, have the right to control the disposition of the decedent's body, including cremation, if they are willing to assume liability for the reasonable cost of same:

(1) The person designated in a 711.002 (b) written instrument signed by decedent.
(2) The decedent's spouse.
(3) Any one of the decedent's adult children.
(4) Either one of decedent's parents.
(5) Any one of decedent's adult brothers or sisters.
(6) Any adult person in the next degree of kinship in the order named by law to inherit the estate of decedent. Health & Safety Code, 711.002.
In State v. Johnson, 896 S.W. 2d 277, 299, (Tex. App--Houston[1st Dist.] 1995), aff'd , 939 S.W. 2d 586 (Tex. Crim App. 1996) the court noted that "spouse" includes a spouse by reason of a common-law marriage.

If there is a dispute within the class of persons designated to decide, the dispute must be resolved in court (711.002(k)). For example, if there is no written directive under 711.002(g) or Appointment of Agent under 711.002(b), and the deceased is not survived by a spouse, the adult children can decide. If those children cannot agree on a decision, the court must resolve the matter. There shall be no liability if a cemetery organization or funeral establishment refuses to accept a decedent's remains or otherwise dispose of the decedent's remains until the dispute is resolved.

A cemetery organization, a business operating a crematory or columbarium, or both, a funeral director or an embalmer, or a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent's remains.

Written by Donald Ray Burger, Attorney at Law
Last revised: October 15, 2008

[Go Back to My Cemetery Page]

[Go Back to My Home Page]