Content Manager posted on June 01, 2011 00:11
June 2011 - Navy
By LCDR MARC J. SOSS
As part of their estate plans, many
individuals execute a “Living Will” to
let family members know their wishes
in the last days of life. Unfortunately,
these same individuals do not express their
burial wishes to those same family members.
This can require family members to guess how
and where to dispose of the decedent’s body.
This decision can become even more difficult
and contentious in the case of separated married
couples, second marriages, Department of
Defense policy and divorced parents (for
unmarried decedents). Proper planning can
avoid this problem at death and any potential
litigation over the issue.
Many states contain laws that determine who
will be a decedent’s decision maker or “legally
authorized person.” The statutes provide the
following order of priority: (1) The decedent (when
written directions are provided by him or her);
(2) The individual designated by the decedent
(as listed on the decedent’s Department of Defense
Record of Emergency Data); (3) The surviving spouse;
(4) A child over the age of 18 years; (5) Parent; (6) Sibling
over the age of 18 years; or (7) Grandchild over the age
of 18 years. Alternatively, if no family member exists or
is available, the following order of priority will apply:
(1) Guardian of the decedent; (2) Personal Representative;
(3) Attorney in fact; (4) Health surrogate; or
(5) Individual willing to assume the responsibility.
In the case of a deceased U.S. service
member, DoD policy dictates that the service
member’s remains be given to the eldest surviving
parent.
Similar to how a Last Will and Testament
(“Will”) specifies who a decedent desires
to serve as the personal representative (administrator)
of his/her estate and to whom his/her
assets are to be distributed upon death, written
burial instructions can specify who shall be the
decedent’s legally authorized individual and
desired burial arrangements (standard funeral,
military funeral, cremation, burial at sea,
scattering of ashes, etc.). It is recommended,
although not legally required, that the burial
instructions be signed in the presence of two
witnesses and a notary public.
A popular technique among many individuals
is to include their burial instructions in his
or her Will. However, this technique is not
recommended because most Wills are neither found or
reviewed until after a decedent’s funeral or cremation
(meaning his/her requests may not be honored). In light
of the recent U.S. Supreme Court ruling, that permits
protesters at military funerals, the decision- maker’s role is
even more important.