Memorial Instructions

For many people, their wishes regarding the disposal of their remains at death are, understandably, a deeply personal and private affair. However, these wishes can’t be too private or else, when the time comes, loved ones will need to guess about what you would have wanted. What do you want to happen to your body when you no longer need it? What type of memorial service do you want? And, do your preferences match up with what your family wants to happen?

The disposition of your remains may be influenced by your religious beliefs, philosophical principles, environmental ideals, or whimsy. Some folks have very specific ideas on the subject. They may expect to reside next to loved ones in the family burial plot, donate their body to science or have their ashes scattered in the wind.
How will your family know what you want? It helps to create a set of instructions – Memorial Instructions, in this circumstance.

Under Florida law, the disposition of a body is not a property right pursuant to §732.6005(2), F.S., but a personal right of the decedent; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). The remains of a decedent are not property under §731.201(32), F.S. and therefore, not subject to ownership by the decedent’s beneficiaries.

Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?

Sec. 732.804, F.S. reads in relevant part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.

If the decedent has not expressed his intent regarding the place and manner of the disposition of his remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?

This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4th DCA 12/9/20). In Giat, the decedent died without a will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”

The court reasoned that common law and not Ch. 497, F.S. controls the dispute between family members over the disposition of the decedent’s remains.
The focus of Chapter 497, Florida Statutes is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.
Rather, section 497.383(2), Florida Statutes (2020), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, where there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.
Our office is happy to work with you in preparing your memorial instructions.