It’s Your Funeral — Or Is It?

Many of my clients are in denial. They do not want to consider the fact that they will die some day. Others take great comfort in having arranged for their funerals and the disposition of their remains. However, one fellow always carried a picture of the cemetery plot, complete with marker, where he and his wife would someday repose and was happy to show it to anyone who asked.

If you are in the latter category, you may be disappointed to learn that in Michigan and Pennsylvania, as in most states, your final arrangements may be ignored by your family when you die. One’s body is personal property and a decedent cannot own anything. Therefore, your body belongs to your heirs, to do with what they want. One would think that the body could be directed to a specific heir by will, but U.S. courts have held that the body is not part of the estate that can be disposed that way.

Your surviving spouse has the authority to make decisions about your funeral arrangements, including the disposition, disinterment and cremation of your body. She also has the right to possess your cremated remains or to give or dispose of them any way she pleases. Only if there is no surviving spouse do your family members get to make those decisions, based on how closely related they are to you.

Let us assume that you are a devout Catholic and you have arranged an elaborate funeral for yourself in your parish. Your good friend, Msgr. Panatela will deliver the eulogy. You will then be buried in sacred ground in St. Gottinhimmel Cemetery, with military honors, since you are a war veteran.

Let us further assume that you caught your wife, who left the church to become a Santaría priestess, canoodling with a Canadian candlemaker, and you threw her out of the house with nothing but the negligeé she was wearing at the time. She now hates you more than her period and would do anything in her power to destroy you. If the spell she is whipping up to neutralize your Lipitor is successful and you expire before the divorce is final, she gets to arrange your funeral and the disposition of your body. You will be cremated and the ashes incorporated in voodoo candles, if not dumped in a Porta-Johnny at a Korn concert.

“Wait a minute,” you say, “I signed a power of attorney and specifically gave the power to arrange my funeral and burial to Msgr. Panatela.” Unfortunately, your power of attorney terminated when you did. The person whom you appointed to take care of your final arrangements has no power to make such decisions unless no family member steps forward. The only exception arises if you authorized organ donation or use of your body for medical or scientific purposes. Then the person you authorized to make anatomical gifts may ignore the objection of the spouse or family members in Michigan. In Pennsylvania, the spouse or family members may prevent even anatomical gifts from being completed.

Paying the funeral home in advance does not guarantee that your plan will not be changed after your death. Your spouse or family may elect a more or less expensive funeral or demand that the funds be transferred to a different mortuary.

What can you do if you are against being cremated? Add fire-retardant to your diet? If you want to be cremated, do you have to plant an incendiary device under your bed?  You can fast-track your cremation, but it would be difficult to prevent it if your spouse or next-of-kin were intent making a cinder block out of you.

You cannot make your final arrangements unmodifiable, but having paid in advance for the services you want will be a strong message about what your preferences are. You can also discourage your family from interfering through a provision in your will or trust that any change in your final arrangements will result in disinheritance. In this, as in many other areas of life, planning ahead is important and consultation with an attorney can be wise and cost-effective.

The legal base for this discussion is the following Pennsylvania and Michigan laws: 20 Pa.C.S.A. sec. 8616 and MCLA 700.3206.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2010 John B. Payne, Attorney