Who Has the Right to Make Funeral Decisions?

In some situations, especially in cases of cultural intermarriage, religious difference, geographic distance, or family division as a result of divorce or disagreement, the party responsible for making decisions about the funeral—whether or bury or cremate the deceased, whether to hold a traditional funeral service or a memorial service, whether to follow any religious traditions, and where the interment or service should take place—can be unclear and even contested.

If the person who died made instructions

If the person who died designated someone to make choices regarding his or her disposition, then that preference must be honored. This designation may have been made in a Last Will and Testament, a living will, or another notarized or otherwise legal document, such as an Authorization for Final Disposition, a Disposition Authorization Affidavit, or an Appointment of Agent to Control Disposition of Remains.

If the person who died did not make instructions

If the person who died did not make any preferences legally known, then the decision falls to the next-of-kin (nearest relative). If the next of kin is unavailable or unable to make decisions of this nature, the next of kin hierarchy is followed until someone who is able to make these decisions can be found.

In certain situations, such as an accident or disaster in which the next of kin was injured as well, the person with the right to control disposition might be temporarily incapable of making arrangements. In these cases, the degree of incapacity will have to be determined, usually by the doctor overseeing care for the next of kin.

In some states, the next of kin who will be making arrangements will need to fill out a form asserting that he or she has the legal right to control the disposition of remains. This form goes by different names, but is sometimes called an At-Need Written Statement of Person Having the Right to Control Disposition or an Affidavit or Authorization to Control Disposition.

Next of kin hierarchy

In order to qualify as next of kin in this situation, a person must be over 18 years old. The relationships listed below usually apply to biological, adoptive, half-, and step-relations equally.

  • Spouse/domestic partner
  • Children 
  • Parents
  • Siblings
  • Authorized guardian
  • Grandchildren
  • Great-grandchildren
  • Nieces and nephews
  • Grand-nieces and grand-nephews
  • Grandparents
  • Aunts and uncles
  • First cousins
  • Great-grandchildren of Grandparents
  • Second cousins
  • Fiduciary (a legally appointed trustee) 

In some states, a close friend who is familiar with the deceased’s wishes may qualify as next of kin if no one on the above list is available or able.

If the next of kin is contested

If the next of kin is incapable of making arrangements, it is legally appropriate to follow the next of kin hierarchy to determine who has the right to control disposition and make arrangements. However, in cases in which the next of kin may only be temporarily incapacitated, it may be fair to wait until the next of kin becomes capable. In these situations, it can be helpful to consider what the (temporarily incapable) next of kin would want or what the person who died would have wanted.

Especially in cases where there are disputes over cultural difference, religious difference, or geographic difference, coming to an agreement about who has the right to control disposition can be challenging. To make the decision that's best for your family, it may be helpful to try and put personal preferences aside and consider what the person who died would have wanted in terms of the disposition and funeral, or whom the person who died would have wanted to make decisions.

To begin making funeral decisions, see our article How to Choose a Funeral Home.

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