When it comes to your Florida estate planning documents, among the easiest areas to overlook is the instructions for the disposition of remains in Florida.
I admit, this topic is a bit morbid, pun intended. However, I suggest that you stay with me and learn about this topic, because it is a huge issue for families. Simply put, the right instructions can bring closure and foster harmony among family members. Whereas, the lack of clear instructions can lead to appalling consequences such as nasty fights and even expensive legal disputes in the Florida probate and civil courts that can rip families apart.
Instructions for the final disposition of remains in Florida can be given in a simple form (known as inter vivos instructions). These instructions minimally need to be sufficient to direct your loved ones and fiduciaries about what needs to happen to your physical remains and who is responsible to make it happen. However, there are a few things to consider when preparing these instructions to be discussed.
Consider the following real life scenario:
A client had been estranged from her children for many years and retained estate planning legal services to write an estate plan. The plan specifically excluded the children from the estate and gifted the remaining estate assets to the client’s friend. The friend also was appointed in various estate roles including the Florida healthcare surrogate, trustee of the Florida revocable living trust and personal representative of the Florida estate.
Despite being given instructions to do so, the client never got around to completing the directions for final disposition of her remains. However, she did discuss her wishes with her best friend and a number of other parties. The client passed away and the children never attended the funeral service. However, when the funeral director asked the children to sign off on the cremation, in accordance with the client’s expressed wishes, the children refused to do so. Despite the clear authority of the client’s friend, who was the healthcare surrogate, the refusal by the children tied the funeral director’s hands and resulted in estate litigation in Florida.
Not too long ago, there was no clarity in the Florida statutes or case law concerning who “owns” a deceased person’s body. On October 1, 2005, the Florida legislature amended FL Stat. 470 and 497, and established a new law to govern the funeral and cemetery industries. Under the new law, there is now a list of “legally authorized persons” who are deemed to have the authority to make decisions concerning the final disposition of remains in Florida. The amendment also established priority of authorized persons if no written instructions are given.
The first legally authorized person is the deceased person. However, in order to be given “priority” as a authorized person (decision maker), he or she must write his/her wishes in an “inter vivos instruction”. However the tricky part is that under the amended statutes, an “inter vivos instruction” means that instructions in a “testamentary document“such as a Florida last will and testament or a revocable living trust in Florida are not recognized as valid. The case law does seems to suggest that the deceased person’s intent expressed in a will or trust should be honored and the courts are often guided by these expressed wishes; however, this is not a clearly established legal rule.
The amended Florida statutes describe who “legally authorized persons” are absent proper inter vivos instructions giving the deceased person priority. The deceased person’s spouse is second in line followed by adult children (at least 18 years old). This fact was a factor in the conflict with the funeral director in our example highlighted above.
Because of the lack of clarity concerning whether a will or trust offers an valid set of instructions for disposition of remains in Florida, the prudent approach is to prepare a separate set of inter vivos instructions. This inter vivos instruction should include 3 areas of important legal instructions.
INTER VIVOS INSTRUCTIONS FOR THE DISPOSITION OF REMAINS IN FLORIDA [3 Key Areas]
To avoid confusion and achieve maximum clarity in preparing the inter vivos instruction, the following 3 areas should be included in the inter vivos instructions for the disposition of remains in Florida.
Identify State of Jurisdiction Over the Disposition of Remains
The state where the deceased person’s remains are upon death generally has jurisdiction to determine what happens to them absent other guidance. The courts’ reasoning in these cases has been that the state has a strong interest in assuring the burial of those who pass away within its borders. Even if the deceased person was “domiciled” (resided) in another state at the time of death, the law presumes that the state in which the remains are located has “in rem” jurisdiction due to possession of the remains.
The authority of the forum state is a huge issue because it will determine what law applies concerning the following two questions of “intent” and “authorized persons” as they directly relate to the fulfillment of the deceased person’s wishes.
The issue of was discussed by the Florida court in the Anna Nicole Smith case without a clear conclusion concerning the authority of the Florida court where the deceased person was not domiciled in Florida.
Inter vivos instructions can clear up the question of the state of jurisdiction and resolve what could erupt into a major court battle. Simply stating something such as “I intend that my remains be transferred to my home state of Florida for internment, memorial services and cremation” can eliminate massive stress and conflict.
Describe Deceased Person’s Intent for Disposition of Remains
The majority of the states place a great weight upon the expressed intent of the person, as is the case concerning the disposition of remains in Florida. The cases, for the most part, have considered the intent of the deceased person in light of the circumstances. The court has great discretion to consider the evidence that is allowed in order to determine the most recent intent of the deceased person.
Statements and discussions, testamentary documents and other circumstantial evidence may be considered. All of this is the stuff of litigation. So, the best policy is creating a clear inter vivos instruction for the disposition of remains which includes the specific intent of the deceased person such as “cremation”, “burial” and “sprinkling of ashes…”
Appoint Legally Authorized Person to Handle Disposition of Remains
If the deceased person leaves clear inter vivos instructions, he or she is deemed to have first priority as an authorized person and may determine the disposition of his/her remains.
The recognition of authorized persons is critical for enforcing the final directions of the deceased person. Where a dispute arises among authorized persons, the court is allowed to considered oral statements made to third parties, and even may go so far as disregard testamentary instructions (given in a will or trust). So these conflicts can be very difficult and expensive to resolve if clear instruction are not provided.
So, the first priority is for the deceased person to establish themselves as an authorized person by leaving inter vivos instructions. An important second step is to designate the person whom is appointed to act on behalf of the deceased person concerning the final disposition of remains in Florida. This is somewhat similar to designating someone to make healthcare decisions in a Florida healthcare directive, and it is not uncommon to give this authority to healthcare surrogate in the healthcare directive.
The appointment of someone to enforce the final disposition of remains in Florida is an entirely different legal appointment than the healthcare surrogate role. This confusion has been aggravated by the Florida legislature who, when they amended FL. Stat. 497.005(37), listed the healthcare surrogate at the end of the list of potential legally authorized persons.
So even if the healthcare surrogate is appointed and authorized in a Florida healthcare directive to make decisions concerning the disposition of remains, the additional step of appointing them in separate inter vivos instructions is arguably a very good idea.
This extra step can eliminate needless conflict with other loved ones who feel entitled to take charge against the decedent’s final wishes.
Tip: It is important that inter vivos instructions for the disposition of remains be executed with the assistance of experienced legal professionals to ensure that proper formalities such as a sworn affidavit are followed.
Although, final disposition of remains in Florida is a highly overlooked aspect of Florida estate planning, it is a critical one given the lack of legal clarity and the tendency for disputes to erupt in this area.
As with most areas of proactive Florida estate planning, it takes only seconds to prepare proper inter vivos instructions for the disposition of remain in Florida. Yet this simple act can save family relationships AND months, or even years, of conflict and courtroom drama.
Steve Gibbs, Esq.