Disposing of Remains Under Florida Law [the Importance of Inter Vivos Instructions]

Anyone old enough to remember the 1990’s will recall the iconic slogan:  “What do you want on your Tombstone?”  For the Tombstone Pizza Company (now owned by Nestle), it was a brilliant marketing campaign.  In the ads, a presumably condemned character would respond by saying “pepperoni,” “sausage,” or some other pizza topping.  Next thing you know, the previously menacing questioner produces a delicious looking pizza.

INTER VIVOS INSTRUCTIONS IN FLORIDA

What Do You Want On Your Tombstone?

The ad campaign used a little dark humor to sell a lot of frozen pizza.  But it raises a legal issue that’s not always all that fun to discuss:  final arrangements.  Florida, like most states, respects the rights of recently deceased persons to decide what happens to their last remains.

Typically, this means instructions for burial or cremation, along with funeral and memorial-service arrangements.  Of course, a recently departed person is no longer capable of expressing his or her preferences, so, to have any say in the matter, you need to provide those instructions in advance.

Disputes over disposition of final remains in Florida and elsewhere can be incredibly contentious.  If two or more surviving family members have conflicting understandings of a departed loved one’s wishes, the result can be bitter, expensive litigation that leads to permanent hard feelings.  It’s a sad situation – particularly because the conflict could easily have been avoided by leaving clear inter vivos instructions.

What are Inter Vivos Instructions?

Inter vivos instructions are directions, set forth in a relatively short legal document, for the final arrangements of the person signing the document.  It’s similar to a last will in Florida but relates to physical remains and funerals rather than property.  In Latin, “inter vivos” means “between the living,” and the legal term basically just refers to something you create while you’re alive – like an inter vivos trust a/k/a living trust in Florida.  Thus, inter vivos instructions are directions you provide while you are living regarding what you want to happen after you die. The objective is to remove any ambiguity over disposition of remains, memorials and funeral services, and responsibility for making it happen.

Why are Inter Vivos Instructions Important?

In a famous Florida case involving disposition of the remains of celebrity Anna Nicole Smith, three parties – each with conflicting beliefs about where Ms. Smith wanted to be buried – fought it out in court over who had the right to take possession of the body.  They couldn’t all be right, so inevitably somebody was going to be disappointed by the court’s decision.  However, as noted by the district judge: “Had Anna Nicole Smith’s affairs been settled prior to her passing, for example, by her putting in writing how (and by whom) she wished her funeral to be conducted … it is quite possible that the matters before this Court would never have been subject to litigation.”

Inter vivos instructions preemptively avoid this kind of situation by determining everything in advance.  Florida Statute 497.005 designates “legally authorized persons” who have the power to make decisions about disposition of a deceased person’s remains.  The law establishes an order of priority, starting with the deceased him or herself and descending to a surviving spouse, adult children, parents, siblings, and then more distant degrees of kinship.  Importantly, though, to hold the top priority, the deceased must have provided “written inter vivos authorizations and directions.”

While it’s not uncommon for a testator to give instructions for disposition of remains in a will or declaration of trust prepared as part of an estate plan in Florida, those documents are not the final word on the question.  A Florida court in Cohen v. Guardianship of Cohen, 896 So. 2d 950 (Fla 4th DCA 2005), held that, even though a decedent’s will said he wanted to be buried in New York, and would otherwise be honored, “clear and convincing evidence” of his subsequent contrary preference takes precedence.  So, if your will says you want to be cremated, but you later change your mind and tell family-members that you want to be buried in the family cemetery, a court will review the evidence and do its best to determine and honor your most recent wishes.  Unambiguous inter vivos instructions remove any room for error.

What to Include in Inter Vivos Instructions?

When preparing inter vivos instructions, there are three principle areas you will want to address: (1) intended disposition of remains; (2) appointment of authorized persons; and (3) jurisdiction over remains.

Disposition of Remains.

Your intended disposition of remains is your choice as to what will happen to your physical body after death.  For most people, this means burial or cremation, but Florida also allows for donation of remains to a medical school for anatomical training and research.  If you opt to be buried, your preferred burial location should be specified.  In addition to traditional cemeteries, Florida allows for burial in private family cemeteries as long as the private cemetery does not sell burial rights and is smaller than two acres.  Or, if you elect to be cremated, you will want to state who will have custody of your ashes and/or where the ashes should be scattered.  Scattering of ashes at sea is subject to EPA regulations and must occur three or more nautical miles away from shore.

Inter vivos instructions can also include other post-mortem directions like preferences for funeral and memorial services and inscriptions for headstones. The more specific the instructions are, the less pressure is on surviving family members to determine what you would have wanted.  So, it’s a good idea to include anything that’s important to you or that could be contentious.  Florida law prioritizes honoring the reasonable wishes of the deceased as long as doing so would not be unlawful.

Inter vivos instructions are also a good place to describe how funeral or burial expenses should be paid.  If the expenses have already been prepaid or a specific account has been earmarked for that purpose, the instructions should describe those arrangements.  Prepaid funeral expenses can be helpful in qualifying for Florida Medicaid because the funds no longer count as an “asset” if the transfer is irrevocable, as with an irrevocable trust in Florida.  If burial funds are set aside in a separate account that is revocable (like a POD account), Florida law exempts up to $2,500 from the Medicaid asset test.

Legally Authorized Persons.

Along with providing instructions for disposition of remains, inter vivos instructions should also appoint the legally authorized person(s) charged with carrying out disposition. Authorized persons make arrangements for funeral and memorial services and have responsibility for the actual remains until burial or cremation is completed.  Any authorized person should be at least 18 years old, willing to assume the responsibility, and capable of traveling to the appropriate location.  Surviving family members and close friends are usually appointed.

Jurisdiction.

Jurisdiction is simply the state whose laws you want to control disposition of remains.  For most people, this is similar to the laws governing probate in Florida and elsewhere connecting them first to the state in which they reside (e.g., Florida residents designate Florida law).  But if, for instance, a lifelong Kentuckian retires to Florida but wants to be buried back in the Bluegrass State, inter vivos instructions might say something along the lines of “it is my intent that my remains be transferred to Kentucky for internment, memorial services and burial and that Kentucky law govern the disposition of my remains.”  Conversely, if a Floridian passes away while on vacation in North Dakota, inter vivos directions designating Florida as the state of jurisdiction would simplify things for survivors.  Absent such an instruction, the laws of the state in which death occurs are generally presumed to govern.

Inter vivos instructions do not have to be long or overly formal, but they should provide sufficient detail to avoid any future ambiguity or conflict over how a decedent’s remains will be disposed and who will be responsible for the disposition.  Importantly, the document must also meet all legal requirements for recognition under Florida law.  An experienced Florida estate-planning attorney can help to decide how to best state your wishes in a legally compliant document.