Who's in Charge?
Note: The information below comes directly from the web site of the New Jersey State Funeral Directors Association, Inc.
In New Jersey, you cannot preauthorize your own final disposition. You can prearrange and prepay for your funeral, you can acquire a cemetery plot or express where you would like your ashes to be scattered, but you cannot sign the final authorization for disposition yourself.
New Jersey, as well as other states, has what is called the Right to Control Law (N.J.S.A. 45:27-22). The law, absent what is called a “funeral agent designation” in a Will, outlines a next-of-kin hierarchy depicting who has the right to control the funeral and disposition of a deceased person. The person with the right to control is not necessarily the executor of the Will.
Unless a court of competent jurisdiction has given other directions, the right to control hierarchy is as follows:
- Funeral Agent or designee on an active duty service member's DD Form 93*
- Legal spouse, NJ registered domestic or civil union partner**
- Majority of surviving children over the age of 18
- Surviving parent(s) of decedent
- Majority of surviving siblings over the age of 18
- Other relatives according to the degree of relationship
- If there are no known living relatives as outlined above, the funeral director may accept the written authorization of other interested parties (i.e., friend, neighbor, colleague)
* In the case of an active duty service member who died while on active duty in any branch or component of the United States Armed Forces, including the New Jersey National Guard called to federal active duty, the person designated by the decedent as authorized to direct disposition, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, shall be the person appointed to control the funeral and disposition of the remains of the decedent.
** New Jersey’s Civil Union Law took effect on February 19, 2007. The law mandates that civil union couples must receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage, whether they derive from statute, administrative or court rule, public policy, common law, or any other source of law. Therefore, the New Jersey Civil Union Law extends the right to control disposition to civil union partners in exactly the same way as it extends this right to spouses.
Often, individuals find themselves in situations where they have either out lived all of their relatives, are estranged from living family members, or are sure that those relatives remaining will not abide by their final wishes. Since these individuals are not able to authorize their own cremation or ground burial, what are they able to do?
In New Jersey, individuals have the right to appoint a funeral agent. Once named, these “agents” have the supreme right to arrange for the disposition of an individual’s remains. The funeral agent’s right to control supersedes the rights of all others, including spouses, civil union and domestic partners, children, parents and siblings. (Those traditionally within the right to control hierarchy.)
The executor is not automatically the funeral agent.
Appointing a Funeral Agent
The funeral agent option is the legal way for you to appoint a specific person to arrange your funeral. Again, the executor is not automatically the funeral agent.
To appoint a valid funeral agent, it must be done in a Will or Codicil. Appointments made any other way are not acceptable. Those interested in appointing a funeral agent need to visit an attorney and inform them that they wish to designate an individual as a funeral agent according to N.J.S.A. 45:27-22.
The attorney will either draw up a Will or amend the existing Will to include language similar to this:
Appointment of Funeral and Disposition Representative
"I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”
Who can be a funeral agent?
Executors of estates, friends, clergy members, social workers, specific relatives or others can be named as funeral agents. Funeral directors should NEVER be named funeral agents. If a funeral director is unknowingly designated as a funeral agent, they should waive their rights in writing, and pass them on to another individual.
If you were designated a funeral agent, you are in charge of making the funeral arrangements using money set aside for this purpose in the Will of the deceased. Following death but prior to probate, the executor of the Will must inform you of your appointment as funeral agent and let you know how much money is available for funeral expenses.
If you do not want this responsibility you may appoint someone else to arrange the funeral on your behalf or you may waive your right entirely. If you waive your right, the control of the funeral passes to other individuals in the order outlined in the right to control hierarchy.
Who needs a funeral agent?
Individuals who might consider designating a funeral agent, include persons:
- Who think their relatives will not honor their funeral wishes or prearrangements.
- Who are estranged from relatives.
- Who do not know where the living relatives are located.
- Who do not have any relatives living.
As the legally recognized spouse, civil union or domestic partner of the decedent you have the number one right to control the funeral, unless someone else is named as funeral agent in the decedent's Will.
This applies to a separated spouse as well. Unless legally divorced, he or she retains the legal right to control the funeral.
A divorced spouse has no legal right to control the funeral of a deceased ex-spouse or ex-civil union or ex-domestic partner unless named funeral agent or appointed by a judge. This holds true even if there are children under the age of 18 involved.
There is one case where the spouse or the civil union or domestic partner would NOT have the right to control. If the decedent had a temporary or permanent restraining order issued, or the surviving spouse or civil union or domestic partner is charged with the intentional killing of the decedent, they do not have the right to control. In these cases, the right to control the funeral and disposition of remains shall be granted to the next person in the next-of-kin hierarchy as established by New Jersey's right to control law.
To have the right to control a civil union partner's disposition, the civil union must be licensed by the state. To qualify as a civil union under N.J. law, the union must be between two individuals of the same sex, over the age of 18 and not a party to another civil union, partnership or marriage recognized by New Jersey.
To apply for a civil union license, couples must apply in the New Jersey municipality in which either person resides. This license will be valid throughout the state. Those partners not in a licensed civil union, unless otherwise named as funeral agent or authorized by a court, have no legal right to control the funeral of the deceased partner.
To have the right to control a domestic partner’s disposition, the partnership must have been officially recognized by the state. To qualify as domestic partners under N.J. law, the partnership must be registered with the state and a certificate of domestic partnership must have been issued. Domestic partners can be same sex couples who are at least 18 years old and opposite sex couples who are at least 62 years old.
Out-of-State Marriages, Civil Unions and Domestic Partnerships
New Jersey will recognize marriages, civil unions and domestic partnerships that have been legally established and legally registered in another state or country. Couples are not required to obtain a new license or register their relationship in New Jersey in order to be recognized.
For more information about New Jersey marriages, licensed civil unions and registered domestic partnerships, visit www.state.nj.us/health/vital.
If a parent dies that was widowed, unmarried, not in a registered domestic partnership or civil union at the time of death, and/or did not appoint a funeral agent, the right to control disposition moves to all surviving adult children, each who share the right equally.
Children include all children related by blood and/or legal adoption. Only children 18 years or older have the right to control the funeral. A majority of the children must be in agreement on the final arrangements before the funeral director can proceed.
- Legally adopted children have the same rights as natural-born children.
- Stepchildren may only authorize the funeral of their natural parent.
- Foster children have no right to plan the funeral of a foster parent.
If the child(ren) are not yet aged 18, the right to control moves to the parents of the deceased, or the siblings of the deceased if parents are no longer living. If the children are minors, and the surviving parent was not still legally married to the deceased at the time of death, that surviving parent has no right to control disposition unless designated as a funeral agent in a Will or appointed by a court.
New Jersey law grants legal guardians and those with power of attorney (called attorneys-in-fact) a variety of rights and privileges that relate mainly to the management of another person’s legal and financial affairs. The ability to preplan and prepay a funeral usually falls within these two categories. The ability to make funeral arrangements for the same individual following their death does not.
Learn the differences between these three legal ways to control the affairs of another person.
Power of Attorney (Attorney-in-Fact)
People holding a power-of-attorney (POA) for a relative or friend at the time of death often believe that they have the right to make funeral arrangements for the person after they die. This is not the case.
The POA is not a person. It is a legal document in which one individual (“the principal”) authorizes another individual (“the attorney-in-fact”) to act on their behalf in legal and financial matters. Under the terms of most financial POA documents, a designated attorney-in-fact can prearrange and prepay the principal’s funeral, but they cannot make at-need arrangements. The reason being that the POA document becomes null and void upon the principal’s death.
The attorney-in-fact also cannot make funeral arrangements for another person on the principal’s behalf unless he or she is also an individual, such as a spouse or child, with a relationship to the deceased as outlined in the right to control law (N.J.S.A. 45:27-22).
Sometimes individuals are led to believe that an executor of a Will or Estate has the right to control final disposition. This is not true. Being designated an executor means that the individual can control a decedent’s assets, not the final disposition. As a matter of fact, laws governing funeral homes and cemeteries assign only one role to the executor when it comes to disposition—to inform the funeral agent of their appointment in a decedent’s Will, if one in fact had been designated.
The role of an executor is limited to financial matters such as probating the Will, locating the deceased’s property, opening an estate checking account, paying bills (including the funeral bill), filing appropriate tax forms and the like.
The job of the executor ends after meeting all the obligations of the estate and disbursing any remaining inheritances to the next-of-kin and/or other named persons or groups.
A guardian may or may not have the right to control final disposition, depending on the powers vested by a probate court. This needs to be determined on a case-by-case basis.
Guardianship is a legal relationship wherein a probate court appoints someone (“the guardian”) to make personal and/or financial decisions for another person (“the ward”). Courts typically appoint the ward’s spouse or an adult child to this position, but can appoint anyone they believe will act in the individual’s best interests.
In some cases, the New Jersey Office of the Public Guardian assumes control of a person’s personal and financial affairs. Upon the death of a state ward the Public Guardian usually defers to the next-of-kin to make funeral arrangements. If there is no next-of-kin or the next-of-kin refuses to make funeral arrangements, the Public Guardian will assume that responsibility, albeit somewhat reluctantly.
If you share the primary right to control the funeral with other family members (such as siblings, spouses, parents, etc.) but cannot agree, you may seek a court order that puts you in control.
To do this, ask your attorney to file an expedited order to show cause on your behalf in New Jersey Superior Court, Chancery Division. The attorney can file in the county where the funeral home is located, where the deceased lived, where the deceased died, or where you live.
If you do not have an attorney, try to find a local attorney who is familiar with the control of disposition statute N.J.S.A. 45:27-22. A decision should be reached in a few days. Any opposition will delay the process.
Once secured, your court ordered right to control disposition will supersede the rights of all others.
16 RIGHTER AVENUE, DENVILLE, NJ 07834
DAVID G. MILNE, MANAGER NJ LIC. NO. 4301
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