Controlling Your Funeral
In New Jersey, you cannot preauthorize your own final disposition. You can prearrange and prepay for your funeral, you can acquire a cemetery plot or express where you would like your ashes to be scattered, but you cannot sign the final authorization for disposition yourself.
New Jersey, as well as other states, has what is called the Right to Control Law (N.J.S.A. 45:27-22). The law, absent what is called a “funeral agent designation” in a Will, outlines a next-of-kin hierarchy depicting who has the right to control the funeral and disposition of a deceased person. The person with the right to control is not necessarily the executor of the Will.
Unless a court of competent jurisdiction has given other directions, the right to control hierarchy is as follows:
Legal spouse, NJ registered domestic or civil union partner*
Majority of surviving children over the age of 18
Surviving parent(s) of decedent
Majority of surviving siblings over the age of 18
Other relatives according to the degree of relationship
If there are no known living relatives as outlined above, the funeral director may accept the written authorization of other interested parties (i.e., friend, neighbor, colleague)
* New Jersey’s Civil Union Law took effect on February 19, 2007. The law mandates that civil union couples must receive the same benefits and protections and be subject to the same responsibilities as spouses in a marriage, whether they derive from statute, administrative or court rule, public policy, common law, or any other source of law. Therefore, the New Jersey Civil Union Law extends the right to control disposition to civil union partners in exactly the same way as it extends this right to spouses.
Often, individuals find themselves in situations where they have either out lived all of their relatives, are estranged from living family members, or are sure that those relatives remaining will not abide by their final wishes. Since these individuals are not able to authorize their own cremation or ground burial, what are they able to do?
In New Jersey, individuals have the right to appoint a funeral agent. Once named, these “agents” have the supreme right to arrange for the disposition of an individual’s remains. The funeral agent’s right to control supersedes the rights of all others, including spouses, civil union and domestic partners, children, parents and siblings. (Those traditionally within the right to control hierarchy.)
The executor is not automatically the funeral agent.
Who can be a funeral agent?
Executors of estates, friends, clergy members, social workers, specific relatives or others can be named as funeral agents. Funeral directors should NEVER be named funeral agents. If a funeral director is unknowingly designated as a funeral agent, they should waive their rights in writing, and pass them on to another individual.
If you were designated a funeral agent, you are in charge of making the funeral arrangements using money set aside for this purpose in the Will of the deceased. Following death but prior to probate, the executor of the Will must inform you of your appointment as funeral agent and let you know how much money is available for funeral expenses.
If you do not want this responsibility you may appoint someone else to arrange the funeral on your behalf or you may waive your right entirely. If you waive your right, the control of the funeral passes to other individuals in the order outlined in the right to control hierarchy.
Who needs a funeral agent?
Individuals who might consider designating a funeral agent, include persons:
Who think their relatives will not honor their funeral wishes or prearrangements.
Who are estranged from relatives.
Who do not know where the living relatives are located.
Who do not have any relatives living.
Appointing a Funeral Agent
The funeral agent option is the legal way for you to appoint a specific person to arrange your funeral. Again, the executor is not automatically the funeral agent.
To appoint a valid funeral agent, it must be done in a Will or Codicil. Appointments made any other way are not acceptable. Those interested in appointing a funeral agent need to visit an attorney and inform them that they wish to designate an individual as a funeral agent according to N.J.S.A. 45:27-22.
The attorney will either draw up a Will or amend the existing Will to include language similar to this:
Appointment of Funeral and Disposition Representative
"I hereby nominate, constitute and appoint [insert name] to serve as my Funeral and Disposition Representative, pursuant to N.J.S.A. 45:27-22. My Representative shall have the authority and power to control the arrangements for my funeral and the disposition of my remains. My Executor shall notify my Representative of this appointment, and shall advise my Representative of the financial means available to carry out the Funeral and Disposition arrangements. In the event [insert name] should predecease me or for some other reason not qualify to serve as my Funeral and Disposition Representative, then I nominate, constitute and appoint [insert name of alternate] as my Funeral and Disposition Representative.”
For more information concerning controlling your funeral and how to appoint a funeral agent please click here.