A Written Right of Sepulcher Belongs in Every Comprehensive Estate Plan: Radford v. Croley Funeral Home

A recent Texas case illustrates a recurring and painful problem: when someone dies without clear written instructions about their remains, disputes among family members (or between family and a non-family partner) can create havoc, leave grieving relatives feeling betrayed, and, in this case leave funeral homes in an impossible position.

A Dispute Over Cremation

In Radford v. Stansbury (Texas Court of Appeals, Texarkana District), Lonzell Radford died while living with his girlfriend, Ardie Govan. Govan arranged for the funeral home to take custody of the body and signed a cremation authorization form identifying herself as “FRIEND/EXECUTOR.” She certified that she had the legal right to authorize cremation. The funeral home proceeded with cremation.

Months later, Radford’s adult sons learned of the cremation and sued the funeral home for wrongful cremation. The trial court granted summary judgment for the funeral home.  The sons appealed, but the the court of appeals affirmed the trial court's judgment. 

Under Texas law, a funeral establishment is not liable when it carries out the written directions of a person who represents that they are entitled to control disposition of the remains. The funeral home had no duty to investigate whether Govan actually outranked the sons on the statutory priority list. The court held that the statutory immunity arises from the signer’s representation of authority on the cremation authorization form; the statute imposes no duty on the funeral home to investigate or verify whether that person actually held priority under the next-of-kin hierarchy.  The result: the girlfriend’s directions controlled, the sons were left without recourse against the funeral home, and a family conflict that could have been avoided became permanent.

Why This Matters for Ohio and Missouri Clients

Both Ohio and Missouri have statutes that establish a clear priority list for who controls the disposition of a deceased person’s remains when no written appointment exists. Those default lists generally favor a surviving spouse, then children, then parents, and so on. A non-family partner (even a long-term girlfriend or boyfriend) usually ranks low or not at all.

The Texas case shows what happens when the person who is actually present and assertive at the time of death is not the person the statute prioritizes. Funeral homes, facing practical time pressure and statutory immunity for relying on signed authorizations, will often follow the directions of whoever steps forward with apparent authority.

The Simple Solution: A Written Appointment

Both states allow an individual to override the default priority list by executing a written document appointing someone to control disposition. In Ohio the relevant statute is O.R.C. § 2108.70 et seq. The official form has the lengthy (and somewhat awkward) title: “Appointment of Representative for Disposition of Bodily Remains, Funeral Arrangements, and Burial or Cremation Goods and Services.” Despite the cumbersome name, the document is powerful. A properly executed appointment gives the named representative priority over everyone on the statutory list, including a spouse or adult children.

In Missouri, the statute calls it the “right of sepulcher” (R.S.Mo. § 194.119). The statute also expressly places an agent named in a durable power of attorney (who has been specifically granted the right of sepulcher) at the top of the priority list, ahead of a even surviving spouse.

Practical Takeaway

A comprehensive estate plan should include more than a will, trust, and powers of attorney. It should also include a clear, properly executed appointment of an agent for the disposition of remains. This single document:

• Prevents the type of conflicts illustrated in the Texas case;
• Gives the client, not the default statute or the most assertive relative,the final say;
• Reduces the chance of litigation; and
• Provides clarity and peace of mind for the people left behind.

The document is inexpensive, easy to execute, and disproportionately valuable. Clients who have strong feelings about cremation versus burial, religious observances, or who should (or should not) be in charge should not leave the decision to a statutory default list or to whoever happens to be present and assertive when the funeral home needs a signature. Put it in writing.