By Sharon Frankenberg,
Attorney at Law
When someone dies who has the right to decide what happens to the body? A competent adult may determine the disposition of his or her remains including the location, manner, and conditions of disposition and arrangements for funeral goods and services. If the deceased left valid disposition directions, state law respects these directions. Disposition directions must be contained in a legible written instrument such as a will, a trust document, a letter of instructions or an advance directive that is signed by the decedent and acknowledged by a notary or witnessed by two competent adults. A properly executed pre-need funeral contract may also give disposition directions.
In the absence of disposition directions or a pre-need funeral contract, the law provides for the order in which various parties may be entitled to exercise the rights of disposition of the deceased’s remains. The statute is Tennessee Code Annotated Section 62-5-703 and provides the following list (summarized here in descending order) of qualified adults who may be entitled to decide the disposition of remains: 1. An attorney in fact designated in a durable power of attorney for health care; 2. The surviving spouse; 3. The sole surviving child of the decedent, or if there is more than one child of the deceased, the majority of the surviving children. However, less than one half of the surviving children shall be vested with the rights of this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition on the part of more than one half of all surviving children; 4. The surviving parent of the decedent; 5. The surviving sibling of the decedent, or if there is more than one sibling of the decedent, the majority of the surviving siblings. However, less than one half of the surviving siblings shall be vested with the rights of this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition on the part of more than one half of all surviving siblings; 6. The surviving grandchild of the decedent, or if there is more than one surviving grandchild, the majority of the grandchildren; 7. The surviving grandparent of the decedent, or if there is more than one surviving grandparent, the majority of the grandparents; 8. The guardian of the person of the decedent at the time of decedent’s death; 9. The personal representative of the estate of the decedent; 10. The person in the classes of next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent; 11. If the disposition of remains of the decedent is the responsibility of the state of a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final distribution of decedent’s remains; or 12. In the absence of any person listed in 1-11, any other person willing to assume the responsibilities to act and arrange the final disposition of decedent’s remains, including the funeral director with custody of the body.
Any person who does not exercise the rights of disposition within 72 hours of notification of the decedent’s death or within 168 hours of the decedent’s death, whichever is earlier, forfeits that right and it passes to the next person in accordance with the above section.
You should always contact an attorney to get advice and assistance with the facts of your particular situation. Sharon Frankenberg is an experienced attorney licensed in Tennessee since 1988. She is a sole practitioner who handles probate, foreclosures, landlord-tenant, collections and general civil matters. She represents Social Security disability claimants and represents creditors in bankruptcy proceedings. Her office is in Knoxville and she may be reached at (865)539-2100.