Who Has The Right in Ohio to Bury or Cremate a Deceased?

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Authority to make decisions regarding disposition of bodily remains, funeral, cremation, and related goods and services is conferred to a person by one of two means.  The first is appointment by the deceased prior to death, and the second is by statute.  

Appointment of Representative 

Ohio law allows an individual during his or her lifetime to appoint a representative who will have the top priority when it comes to making funeral and disposition arrangements. If an individual appoints a representative in a document that meets the requirements of Ohio Revised Code § 2108.72, that representative has full authority, even over the contrary wishes of a spouse, or eldest child, to make funeral, cremation, and disposition arrangements.

If a declarant or deceased adult has made an anatomical gift under sections 2108.01 to 2108.29 of the Ohio Revised Code, any person given the right of disposition is bound by the anatomical gift and must follow the instructions associated with the gift before making any decisions or taking any other actions associated with the right.  See, Ohio Revised Code § 2108.78.

An appointment is valid only if made in a written document that meets the requirements of Ohio Revised Code 2108.72. Owners and employees of funeral homes, cemeteries and crematories may not be appointed as a representative unless they are related by blood or marriage to the individual making the appointment. 

Appointment of Representative forms are available free of charge at most funeral homes and crematories, and are available online here courtesy of the Franklin County Probate Court, and here, courtesy of the Funeral Consumers Alliance (FCA), a nonprofit organization that protects consumers' rights to choose meaningful, dignified, affordable funerals.  We encourage use of the forms available courtesy of Franklin County Probate Court, because they are "form fillable;"  you can type your personal information into the form and print it out for signature, before witnesses and/or a notary public.
   

Statutory Authority of a Representative

Section 2108.81 of the Revised Code, establishes the following order of priority of a representative to make disposition decisions:

(1)The representative appointed by the decedent to have the right of disposition.

(2)The decedent's surviving spouse.

(3)The decedent's surviving child or children.

(4)The decedent's surviving parent or parents.

(5)The decedent's surviving sibling or siblings.

(6)The decedent's surviving grandparent or grandparents.

(7)The lineal descendants of the decedent's grandparents as spelled out in Section 2105.06 of the Revised Code.

(8)The decedent's personal guardian at the time of death.

(9)Any person willing to assume the right of disposition, including the personal representative of the estate or the licensed funeral director with custody of the body, after attesting in writing and good faith that they could not locate any of the persons in the above priority list.

In the event that several individuals of the same class cannot agree on funeral or disposition arrangements, the law permits the majority to control. Additionally, if an individual cannot be located, the majority of those who are available will control. For example, if a widow dies with five adult children, two of whom want cremation, one of whom wants burial and two of whom cannot be located, the children who opted for cremation would prevail.

If there is not a majority present to resolve a dispute, any party, including the funeral director, may petition the probate court to decide the issue. The probate court is given five factors in the statute to consider when rendering a decision as to who will control the disposition.

Liability for the Cost of Disposition

Although a deceased's estate is liable for the cost of the funeral, cremation, burial, or other disposition goods and services, the person with authority, whether designated in writing or acting pursuant to the Ohio statute is also personally liable.  Section 2108.89 of the Ohio Revised Code provides that:  

The following persons shall be liable for the reasonable costs of any goods or services purchased in connection with the exercise of the right of disposition for a declarant or deceased person:

(A) A representative or successor who assumes liability for the cost of such goods and services by signing a written declaration that states that such an assumption is made;

(B) A person to whom the right of disposition is assigned pursuant to section 2108.81 of the Revised Code and who has purchased goods or services associated with an exercise of the right.

While the agent or representative of the deceased can make a preferred claim against the estate for reimbursement, and be paid before other creditors of the estate, the agent is, nonetheless, personally responsible. 
  

Loss of Right of Disposition 

In order to exercise the right of disposition, an individual must be 18 years or older and mentally competent. Persons who have been appointed as a representative or who hold the right of disposition because of their relationship with the decedent will lose that right in the following situations:

• The person dies or is declared mentally incompetent by the probate court;
• The person resigns or declines to exercise the right of disposition;
• The person refuses to exercise the right within two days after notification of the decedent's death;
• The person cannot be located with reasonable effort;
• The person is charged with the murder, aggravated murder or voluntary manslaughter of the decedent;
• The person is charged with an act of domestic violence and it is alleged that the violence resulted or contributed to the decedent's death;
• The person is the spouse of the decedent and a petition for divorce has been filed and has not been dismissed at the time of death, or;
• The person is the spouse of the decedent and the probate court determines that the decedent and the spouse were "estranged" at the time of death;
• The person is unwilling to accept responsibility for paying the funeral costs.

The last provision is not listed overtly in in the Ohio Revised Code Sections describing the conditions which cause a person forfeit the authority to make disposition decisions, but arises as a consequence of Ohio law making the agent personally responsible for costs and expenses.   A person who holds the right of disposition, but is unwilling or unable to pay the costs of the funeral and disposition, loses that right; funeral homes are not  required to take directions from relatives unless they are willing and able to pay for the funeral, burial, or cremation.  

Funeral Home Protection

Ohio law provides an extensive array of protections for funeral homes, cemeteries and crematories against lawsuits and claims by disgruntled family members. As long as employees of funeral homes, cemeteries or crematories are acting in good faith, they may rely upon statements made to them by persons claiming to have the right of disposition. Moreover, the statute provides immunity against lawsuits in the event that reliance was misplaced. For example, if a person misrepresents that they have the right of disposition, the funeral home will not be responsible for relying upon that misrepresentation unless it can be shown that the funeral director had reason to know that the misrepresentation was false.

Most funeral homes,  crematoriums, and cemeteries will require the person arranging the funeral to sign a "Claim of Authority to Carry Out Disposition" form which  tracks the wording of the Ohio statute.  This form constitutes a certification that the person is authorized to make decisions, and helps to demonstrate that the funeral home acted in good faith in relying upon claims made by family members.

The law also provides that a funeral director who is aware of a dispute regarding the right of disposition may refuse to accept the remains or to complete the funeral or disposition until the funeral director receives a court order or a written authorization from the person or persons who have the right of disposition. During a dispute, the statute authorizes the funeral director to embalm or refrigerate the remains in order to preserve them and to add those costs to the funeral bill. Moreover, if the funeral home must seek the intervention of the probate court, the funeral home may add its legal fees and court costs to the funeral bill.

For this reason and many others, every person adopting an estate plan should complete a form identifying the persons, in order of succession they desire to exercise disposition authority.  Failure to do so is an invitation to disputes, and the costs can be extreme for disputes and disagreements, in part because the estate will be responsible for the legal fees incurred by the funeral home, crematorium, or cemetary. 

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Expressions of Faith and Values in Your Estate Plan

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For many, passing religious beliefs and values to the next generation is just as important as passing along financial wealth and tangible assets; for others, passing faith and values is even more important.  Estate planning creates many opportunities to declare, share, convey, demonstrate, illustrate, or profess, your important thoughts and feelings.. Our clients often include their beliefs and values in their estate plans, encouraged by discussions regarding professions of faith. Following this article is a link to the Memorandum Regarding Profession of Faith we provide new clients.  What follows is a brief discussion of some of these opportunities.

End-of-Life Care

In a health care power of attorney or Living Will (Advance Directive in some states), you nominate someone to make medical decisions for you in the event you cannot make them yourself. You should select someone who shares your faith and values regarding end-of-life issues or someone who will honor your wishes even if they are do not share your values. In either case, it is important to provide written instructions regarding important decisions like organ donation, pain medication (if you want to remain conscious or be fully sedated at the end of life), hospice arrangements, dementia care, even avoiding care in a specific facility. You may want to be visited by a priest, rabbi or other member of clergy, and if so, should make your wishes in that regard clear. Pregnant women may want to include their preference on medical decisions that would impact the mother and her unborn child.

Funeral and Burial Arrangements

Your faith may inform your views on burial, cremation, autopsy, and preparation of your body for disposition, such as by embalming. Your faith may inform or influence the kind of service you want (or don’t want). Some people pre-plan their funerals and include a list of people to notify (which can be helpful for a grieving family). Some even pre-pay for the funeral and burial plots to prevent their loved ones from overspending out of grief and/or guilt.  Regardless, your estate plan should include a written Right of Sepulcher, or Appointment of an Agent for Disposition of your Bodily Remains, Funeral,  Cremation, and/or Burial Goods and Services. You should also direct your agent regarding preferred cemetery, cremation provider, or funeral/memorial service provider. 

Charitable Giving

Giving to others who are less fortunate is common among people of all faiths. With proper planning, even those with modest estates can make significant final distributions to their church or synagogue, university, hospital or other favorite cause. Not only do gifts or donations at death allow you to continue supporting your favorite charities after you are gone, it will let your family know that giving is important to you – and set an example for your children or other beneficiaries for their own charitable giving.  

Organ and tissue donation can also benefit your loved ones: the gift of life and health to others can ease the grief that follows loss, and provide comfort in giving a purpose to death.  Organ and tissue donation also can make available grief counselors for those in need.  Grief counselling is rarely provided by insurance, but is often provided for free to family members of organ and tissue donation. Lifebanc provides individual grief counseling with a licensed grief therapist for donor families free-of-charge, and can arrange for Lyft rides for those within a 20-mile radius. Individual counseling is also offered via Skype.

Distributions to children and grandchildren

Taking the time to plan how you leave assets to your family lets them know how much you care about them, and is another way to convey your faith values. For example, you can provide for the religious education of your children or grandchildren. If you have younger children, you should nominate a person who shares your religious views to manage their inheritance, or will respect and follow your values. You should consider a letter of instruction to their nominated guardian with your views on the care and upbringing of young children. 

Especially if you have minor children, you will want to consider carefully the person you nominate as guardian to rear your children, and consider whether the person you nominate is  likely to be be preferred by the legal system.  You may be best advised to incentive acceptance of your nomination by third parties and the the legal system with a conditional trust.  If you are concerned, seek legal counsel who can navigate these very troubling waters. 

If your children are older and you aren’t crazy about a son- or daughter-in-law, your attorney can help you provide for your son or daughter in a way that will prevent your money from falling into the wrong hands. However, be careful about making an inheritance conditional or disinheriting a child or grandchild who marries outside your faith or doesn’t adopt your faith.  These restrictions may not be enforceable, and may be ignored by either your decision-maker or the legal system.  Discuss with counsel these limitations with an appreciation that you can't force someone to believe as you.  Generally, it is better to avoid discord in the family. The emotional scars suffered by a family at emotional, psychological,legal, and economic war are probably not the  loved ones.

Conclusion

Transferring your faith and values to your family is best accomplished over time, by letting your family see your faith at work in your life. Your involvement in religious services, charitable work, and simple treatment of others speak volumes. It’s never too late, and it's never a bad idea to speak to those with whom you may not have the opportunity during your life, such as your unborn heirs. Letting future generations know the bedrock upon which they are based is humbling, connecting, and encouraging. Regardless, speak to your family while you can. Explain what your faith means to you and how it has helped you through the difficult moments of your life. You can also write personal letters or make a video that they can keep and review long after you are gone.  Bottom line: the intangibles may be far more valuable than the stuff about which we so often focus in constructing an estate plan;

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More:

You can review the Memorandum Regarding Profession of Faith we provide new clients here. 

Note: this article was inspired by, and incorporates text and elements from this article.  

Medicaid Applicant Penalized for Assignment of Life Insurance to Funeral Trust

An Illinois appeals court recently held that a Medicaid applicant who purchased a life insurance policy that was assigned to a trust designed to pay funeral expenses is subject to a transfer penalty because the funds could be used for something other than funeral expenses pursuant to the terms of the trust.. Evans v. State (Ill. Ct. App., No. 4-12-1082, Dec. 24, 2013).

Nursing home resident Peggy Evans applied for Medicaid benefits and several days later purchased a life insurance policy for $12,000. The proceeds of the policy were assigned to an irrevocable trust. The trust provided that the trustee pay Ms. Evans' funeral and burial expenses if a bill was presented within 45 days of Ms. Evans' death.  The trust provided further  that in the event that a bill was not presented within that time frame, the assets would be distributed to Ms. Evans' children. The state approved her Medicaid application, but assessed a penalty period based on the transfer.

Ms. Evans' appealed, arguing the transfer to the life insurance policy was exempt from a penalty because the funds were for funeral and burial expenses. Normally, transfers to a funeral trust do not result in a penalty because the funds are used to for satisfying  funeral and burial expenses   The the Department of Human Services denied her appeal, and the trial court affirmed the decision. Ms. Evans appealed.

The Illinois Appeals Court affirmed, holding that the transfer to the life insurance policy was not exempt, so the state correctly assessed a penalty period. According to the court, in order for prepaid burial expenses to be exempt from a transfer penalty there has to be a burial contract in place, which was not the case here. In addition, "the funds can only be used to pay funeral expenses, also not the case here, as the structure of the trust could allow the funds to pass to Evans' children instead of paying funeral expenses."

The decision did not disclose who drafted the trust, or whether counsel reviewed or approved the trust.  Nonetheless, the decision underscores the importance of crafting a funeral trust with appropriate and effective limitations.

For the full text of this decision, go here.