ElderLaw News — The Estate Planning & Elder Law Firm, P.C. — MD, VA, DC
ElderLaw News

ElderLaw News is a weekly e-newsletter that brings you reports of legal developments and other trends of vital interest to seniors and their advocates. This newsletter is brought to you by The Estate Planning & Elder Law Firm, P.C., William S. Fralin, Esq., President.

After-Death Decisions

Many people are surprised to learn that while Virginia law identifies those individuals with the legal right and authority to make burial arrangements for a deceased party, the law does not prioritize the right and authority of those individuals.

This means that at your death, any number of individuals may be able to direct the funeral home regarding the disposition of your remains (such as burial vs. cremation), even when such direction conflicts with your wishes. Consider, for example, the following:

The decedent, John, dies and leaves behind a wife, Jill, and two children from a previous marriage, Mark and Mary. Several years prior to his death, John purchased two burial plots in Virginia so he and Jill could be buried next to each other. Jill plans to honor John's wishes and have him buried in one of the plots. Mark and Mary, however, have never been particularly fond of their stepmother, Jill, so they decide that they will direct the funeral home to cremate their father's remains. But before Jill, Mark or Mary can get to the funeral home to direct the disposition of John's remains, John's brother, Bill, has his brother's remains buried on the family farm in Isle of Wight County. Under Virginia law, Bill's actions are valid, and Jill, Mark and Mary likely have no recourse against Bill or the funeral home.

Virginia law provides that a decedent's "next of kin" may make arrangements for the disposition of the decedent's remains upon his death. "Next of kin" encompasses a broad range of individuals, including the decedent's (i) spouse, (ii) child over 18 years of age, (iii) custodial parent, (iv) noncustodial parent, (v) siblings over 18 years of age, (vi) guardian of a minor child, (vii) guardian of a minor sibling, (viii) maternal grandparents, (ix) paternal grandparents, (x) maternal siblings over 18 years of age, (xi) paternal siblings over 18 years of age, or (xii) any other relative in the descending order of blood relationship. Yet, while providing this extensive "next of kin" list, Virginia law does not give priority to any "next of kin" to make funeral and burial decisions. The determination of who gets to make such decisions often is guided by the application of a simple, but longstanding, legal principle: "first in time, first in right."

One step towards rectifying this problem was taken in 2010 when the General Assembly amended Virginia Code § 54.1-2825. This section of the Code permits a person to designate, in a notarized writing, an individual who shall make arrangements and be otherwise responsible for his funeral and the disposition of his remains − including cremation, interment, entombment, memorialization, or some combination thereof − upon his death. More importantly, however, the Code was amended to provide that such designee shall have priority over all persons otherwise entitled to make such arrangements, provided that a copy of the signed and notarized writing is provided to the funeral home and/or cemetery no later than 48 hours after the funeral home receives the decedent's remains.

In light of these amendments to Virginia law, it is a good idea for individuals to discuss with their estate planning attorneys the designation of someone to make arrangements for a funeral and the disposition of remains. Such a designation should be a key element to many, if not most, estate plans.

The attorneys at The Estate Planning & Elder Law Firm can assist clients with their estate, financial, insurance, long-term care, veterans' benefits, and special needs planning issues.


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The Estate Planning & Elder Law Firm, P.C.

The Estate Planning & Elder Law Firm, P.C. is an elder law firm. We represent older persons, disabled persons, their families, and their advocates. The practice of elder law includes estate planning, estate and trust administration, powers of attorney, advance medical directives, titling of assets and designations of beneficiaries, guardianships, conservatorships, and public entitlements such as Medicaid, Medicare, Social Security, and SSI, disability planning, income tax planning and preparation, care management, and fiduciary services. For more information about The Estate Planning & Elder Law Firm, P.C., please visit our website at http://www.chroniccareadvocacy.com.

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