Another Florida End of Life Planning Issue: In Florida, Will Your Last Wishes On a Final Resting Place Be Respected? Tough Answers Under Florida Probate Law

Posted By on March 20, 2012

When a loved one first passes away, the last thing on anyone’s mind is Florida probate law.  There’s the fierce emotion of grief and loss, and the practicalities of letting everyone know and coordinating travel schedules for family and friends, while dealing with all the sadness that surrounds the finality of death.

For many Floridians, things can get complicated quickly if a conflict arises regarding the decedent’s wishes on how his or her remains are to be handled.

  • Does the will state that he or she wanted to be cremated or buried, but personal or moral or religious beliefs of surviving loved ones cannot agree with this decision?
  • What about if the decedent wanted to donate organs but loved ones are against harvesting?
  • What about if there’s nothing specific to know what the decedent’s wishes were, and surviving family members don’t agree on what to do?

In these instances, Florida law can come into play to make these difficult decisions.  However, it may not be a simple solution of looking up a Florida statute and reading its language.

In the State of Florida, three statutes apply to this situation:  Florida Statutes 406.50, 497.002 (et seq) and 732.804.  These are the laws that have been passed by the Florida Legislature and approved by the Governor.  However, they do not resolve all the issues involved in these difficult scenarios because Florida courts do not agree on how these laws apply to various situations:

497.002 … (2) Subject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements. Accordingly, unless otherwise stated herein, it is the Legislature’s express intent that nothing contained in this chapter should be construed or interpreted in any manner as to subject preneed contract purchasers to federal income taxation under the grantor trust rules contained in ss. 671 et seq. of the Internal Revenue Code of 1986, as amended.

732.804 Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements. The fact that cremation occurred pursuant to a written direction signed by the decedent that the body be cremated is a complete defense to a cause of action against any person acting or relying on that direction.

406.50 All public officers, agents, or employees of every county, city, village, town, or municipality and every person in charge of any prison, morgue, hospital, funeral parlor, or mortuary and all other persons coming into possession, charge, or control of any dead human body or remains which are unclaimed or which are required to be buried or cremated at public expense are hereby required to notify, immediately, the anatomical board, whenever any such body, bodies, or remains come into its possession, charge, or control. Notification of the anatomical board is not required if the death was caused by crushing injury, the deceased had a contagious disease, an autopsy was required to determine cause of death, the body was in a state of severe decomposition, or a family member objects to use of the body for medical education and research.

(1) The person or entity in charge or control of the dead body or human remains shall make a reasonable effort to determine:

(a) The identity of the deceased person and shall further make a reasonable effort to contact any relatives of such deceased person.

(b) Whether or not the deceased person is entitled to burial in a national cemetery as a veteran of the armed forces and, if so, shall make arrangements for such burial services in accordance with the provisions of 38 C.F.R. For purposes of this subsection, “a reasonable effort” includes contacting the county veterans service office or regional office of the United States Department of Veterans Affairs.

(2) Such dead human bodies as described in this chapter shall be delivered to the anatomical board as soon as possible after death.

(3) Nothing herein shall affect the right of a medical examiner to hold such dead body or remains for the purpose of investigating the cause of death, nor shall this chapter affect the right of any court of competent jurisdiction to enter an order affecting the disposition of such body or remains.

(4) In the event more than one legally authorized person claims a body for interment, the requests shall be prioritized in accordance with s. 732.103.

For purposes of this chapter, the term “anatomical board” means the anatomical board of this state located at the University of Florida Health Science Center, and the term “unclaimed” means a dead body or human remains that is not claimed by a legally authorized person, as defined in s. 497.005, for interment at that person’s expense.

Larry’s Tip: Right now, Florida law is not solid in having anyone assume that just because they state in their Florida Will that their wishes on what to do with their remains will be respected.  That’s not the reality.

There are Florida court opinions that can be used by grieving loved ones to block or negate those decisions.  For instance, in a 1999 case (Andrews v McGowan), a fight erupted between the decedent’s family members and his estranged spouse over where his remains should be buried.  The family lost and the estranged spouse made the decision all based upon reference to legal rights to the remains under Florida law and no consideration of the decedent’s wishes.

Most will recognize the probate fight here in Florida involving Anna Nicole Smith (Arthur v Milstein).  Anna Nicole’s remains were claimed by her mother, Vergie Arthur, who wanted to bury Anna Nicole Smith in Texas; Anna Nicole’s representative under her will, Howard K. Stern; and her minor daughter, through the child’s guardian ad litem Richard Milstein.  Stern argued that the decedent’s wishes were to be buried next to her son, Daniel, in the Bahamas.   The daughter’s guardian agreed with the Bahamas as the burial site.

Result?  The trial court ruled for the Bahamas based upon testimony surrounding Anna Nicole’s desire to be buried next to her son, who had died shortly before her own death.  The Fourth Court of Appeals agreed with the trial court’s ruling.

However, since the Anna Nicole Smith case was not appealed to the Florida Supreme Court, the conflict between that court case and the earlier McGowan decision stands in Florida law.  There is no clear-cut answer on who gets to decide in a conflict over the disposition of a decedent’s remains in the State of Florida and whether or not evidence of the decedent’s stated wishes must be a part of the decision.

What is clear is that in the future, grieving family members somewhere will need to file legal claims in order to fight for what they believe to be the right thing to do in these situations.

If you have questions or comments, please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com or (954) 458-8655.

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