Legal Right to Remains

Funeral Consumer Alliance of Greater Philadelphia 

1906 Rittenhouse Square, Philadelphia, Pa 19103

Please feel free to contact us at: (215)-545-9210

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FCA FAQ'S

This information is provided by Rob Gasparro, Esq., a board member of the Funeral Consumer's Alliance of Greater Philadelphia. We will answer any questions from FCA members about this information.

The best way to direct what type of funeral you want, is to indicate your desire in your Living Will (also known as an Advance Medical Directive). Although you may also indicate your desire in your will, there is a chance that your will may not be found in time. In fact,  one may not probate a will in Pennsylvania, until AFTER the funeral has taken place. 

 Title 20, Section 5456 of the Pennsylvania Code, at the very bottom of this page, explains the authority to place this power in your Living Will (Advance Medical Directive).

Title 20  of the Pennsylvania Code, Section 305, immediately  below, explains that you may place this power in your will. If you do not place it in either document, Section 305 of the Pennsylvania Code  governs who will plan your funeral. As you can see, it gets very complicated. There are also court cases, such as Kulp  v. Kulp, 2007 Pa. Super 70, (2007), which interpret these rules, and make it more complicated.

The clear message should be that all FCA members should appoint someone to plan your funeral in your Living Will (Advance Medical Directive) or your will, and not leave it to the law or the courts. The court filing fee to commence litigation is generally greater than the cost to have an attorney prepare these documents for you. There are other resources where these documents may be found and the FCA will help members find them.

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§ 305. Right to dispose of a decedent's remains.

(a) General rule.--The determination of the final disposition of a decedent's remains shall be as set forth in this section unless otherwise specifically provided by waiver and agreement of the person entitled to make such determination under this section, subject to the provisions of a valid will executed by the decedent and section 8611(a) (relating to persons who may execute anatomical gift).

(b) Disposition of the remains of a deceased spouse.--Absent an allegation of enduring estrangement, incompetence, contrary intent, or waiver and agreement, which is proven by clear and convincing evidence, a surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains of the decedent.

(c) Disposition of the remains of others.--If there is not a surviving spouse, absent an allegation of enduring estrangement, incompetence, contrary intent, or waiver and agreement, which is proven by clear and convincing evidence, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.

(d) Procedure.--Where a petition alleging enduring estrangement, incompetence, contrary intent, or waiver and agreement, is made within 48 hours of the death or discovery of the body of the decedent, whichever is later, a court may order that no final disposition of the decedent's remains take place until a final determination is made on the petition. Notice to each person with equal or higher precedence than the petitioner to the right to dispose of the decedent's remains, and to his attorney if known, and to the funeral home or other institution where the body is being held, must be provided concurrently with the filing of the petition. A suitable bond may be required by the court.

  1. If the court determines that clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent, or waiver and agreement, the court shall enter an appropriate order regarding the final disposition, which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate.
  2. If two or more persons with equal standing as next of kin disagree on disposition of the decedent's remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.
  3. If the court determines that the petition is not supported by a clear and convincing evidence, the court may award attorney fees. An award of attorney fees shall constitute a set-off against any claim by the petitioner against the estate.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Contrary intent."
An explicit and sincere expression, either verbal or written, of a decedent adult or emancipated minor prior to death, and not subsequently revoked, that a person other than the one authorized by this section determine the final disposition of his remains.
"Enduring estrangement."
A physical and emotional separation from the deceased at the time of death of the person authorized by this section to determine the final disposition of the decedent's remains, which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the deceased.
"Next of kin."
The spouse and relatives by blood of the deceased in order that they be authorized to succeed to the deceased's estate under chapter 21 (relating to intestate succession) as long as the person is an adult or an emancipated minor.

 

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Section 5456 Provides:

 

§ 5456.  Authority of health care agent


    (a) EXTENT OF AUTHORITY.-- Except as expressly provided otherwise in a health care power of attorney and subject to subsection (b) and section 5460 (relating to relation of health care agent to court-appointed guardian and other agents), a health care agent shall have the authority to make any health care decision and to exercise any right and power regarding the principal's care, custody and health care treatment that the principal could have made and exercised. The health care agent's authority may extend beyond the principal's death to make anatomical gifts, dispose of the remains and consent to autopsies.