What happens to a decedent’s bodily remains in the event of disagreement?

My father has taught trusts and estates for more than forty years.  When teaching law students law applicable to disputes over a decedent’s bodily remains, he sometimes jokes about feeling strongly about not wanting to be buried with the worms after he dies. 

It doesn’t sound like much of a joke until he explains to his wife’s maiden name is Worm. 

(Yes, it’s true; my mother’s maiden name really is Worm.)

 Do you have a preference on what happens to your body after you die? 

Do you have a preference on what happens to your body after you die? 

My father always goes on to explain to students that he’s actually an “ashes-to-ashes” kind of person who doesn’t really care what happens to his bodily remains after he has died.  And he also adds that the lawyer’s preferences are not relevant; all that matters is what the client wants after understanding all the viable options.

Some people have a very strong preference on questions such as cremation or burial; expensive or bargain-basement casket or urn; where to spread or store ashes, or inter a casket; whether services should be public or private—with or without a religious element—or dispensed with entirely. 

Such people should consider appointing a designated funeral agent.  Done properly, that legally empowers the agent to carry out the decedent’s directions. 

In the absence of such a designation, the decedent’s closest living relative or relatives generally get to make all decisions about the decedent’s bodily remains.  That can be problematic when multiple decision-makers cannot agree on what the decedent would want, or what ought to be done in any event. 

These kinds of disagreements seem to be increasingly common.  They sometimes have a lasting negative impact on family relationships.

A designated funeral agent can be a good idea even for people who, like my father, do not have strong feelings about what happens to their bodily remains.  Unless there has been advance planning, important funeral decisions usually have to be made within days, sometimes hours, of a person’s death—a time when the decision-maker(s) may be at a low point mentally, emotionally, physically and psychologically. 

Having settled such matters ahead of time, or clarified who should make the decisions, can all-but eliminate the chances of family conflict after their loved one has died.  

Some people select an entire funeral plan while still alive, and may even pay for it.  Such advance planning can simplify things for the survivors.

Whoever makes funeral decisions should know that prices can vary considerably, making it important to “shop around.”  A federal law requires that funeral home directors provide an itemized price list of their products and services, but you may need to request it.  This and numerous other consumer tips can be found by Googling “FTC Funeral Rule.”

Because individual circumstances vary, the information provided in this blog is not intended and should not be treated as legal advice.


John Roth is the founder of Hawaii Trust & Estate Counsel, a statewide estate planning law firm with offices in Waimea, Hilo, Kona, and Honolulu. He has taught Estate Planning at the Richardson School of Law, and business law courses at the University of Hawaii—Hilo. He has resided in North Hawaii since 2008.

Learn more about John and the other attorneys at Hawaii Trust & Estate Counsel.