Do you have specific burial or cremation wishes? Perhaps you have explained those to your family. Maybe you have written them down. You might even have made the arrangements — and paid for them in advance. Will your family — and the funeral provider — follow your wishes?
Funeral/burial law varies by state
First, we need to make clear: state laws control funerals, burials and cremations. That means the regulations and the practices vary — a lot — from one state to the next. So be very careful about generalizing from an anecdote — like the story we relate here — to your state’s laws. Still, there are some principles that are common among states. And the specific problems that arise in one story can give you some understanding about what you might do, even if you live in a different state.
Arizona law, for example, gives a strong preference to following the funeral, burial or cremation wishes of the decedent. As is true in some other states, the Arizona law first sets up an obligation: immediate family members are required to arrange for the burial or other disposition of a deceased relative. Then the Arizona law mandates that, when the person making arrangements “is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”
What does Arizona law mean by including the qualification about “economic or emotional hardship”? It’s simply not clear. Presumably, if your burial instructions direct that you be buried seated in behind the wheel of your 1963 Ferrari 250 GTO, that might create an economic hardship — if not an emotional setback, as well. But what if you insist on burial, rather than the less-expensive alternative of cremation? Or what if you insist on cremation, despite your family members’ strong religious objections?
A recent California case
Keeping in mind that state laws differ, a court decision we read last week provided a good look at the kinds of problems that sometimes arise. We might note that the California case is “unreported”, which means that it cannot be cited as precedent in other cases, even in California. Still, Arvin Andelson (accidentally, we think) taught us something about making our burial or cremation wishes clear.
Mr. Andelson apparently felt strongly about what should happen after his death. He even signed up with a pre-need organization to ensure that those wishes would be carried out. The plan provided for him to be cremated, and for his ashes to be scattered at sea. He even specified where the scattering was to take place: “three miles off the coast of the County of Los Angeles.”
In addition to spelling out his cremation wishes, Mr. Andelson also signed a will. He named his son Arthur to handle all of his decisions, and to receive his remaining estate. He specifically provided that Arthur was to “make all decisions with respect to my cremation and ashes.” Then he disinherited his other son (and Arthur’s brother) Robert.
Two years later Mr. Andelson signed a health care power of attorney. By this time his son Robert seems to have been back in his good graces. He named Robert as his health care agent. The document also gave Robert the power to “direct disposition” of Mr. Andelson’s remains.
Mr. Andelson spent the last two months of his life in a hospice facility in Riverside County, California. When he died Robert contacted the funeral provider and arranged for the cremation. Robert took the ashes, held a memorial service and then scattered the ashes at sea. The scattering, however, took place off the coast of Orange County.
Litigation over the ashes
When he learned what had happened, Arthur Andelson was very distraught. He believed that the memorial service violated his father’s wishes. He insisted that he was supposed to be in charge of the arrangements, since he was named in his father’s will (it had not been changed). Also, he felt that his father’s wishes about the place of scattering had been ignored.
Arthur Andelson sued the cremation organization that had originally signed the contract with his father, as well as the one that actually carried out the cremation. His complaint asked for $5 million in damages, plus punitive damages in a similar amount. He alleged that they had violated his father’s wishes, had dealt with his brother despite knowing that the will gave him authority over the cremation, and that they had conspired with Robert to commit fraud in reporting the disposition.
The trial court hearing Arthur Andelson’s case decided that there was no cause of action. The court dismissed his complaint, and he appealed.
The California Court of Appeal agreed with the cremation providers. The appellate court agreed that Mr. Andelson’s power of attorney gave Robert authority to handle the cremation arrangements. Besides, ruled the Court of Appeal, Mr. Andelson’s cremation wishes had actually been carried out, and the cremation agencies had used their best efforts to follow those wishes. Andelson v. Neptune Management Corp., January 3, 2018.
But what does Mr. Andelson’s story teach us?
We often direct clients to make sure their wishes are clearly spelled out. It’s a good idea to write them down, and to name a person to see to their completion. Obviously, you should name someone who knows what you want and is able (and willing) to comply with them.
It appears, though, that Mr. Andelson did all that. He signed a pre-need arrangement, including specific instructions. His will and his power of attorney both gave clear authority to someone who could carry out his cremation wishes.
What went wrong? Maybe nothing. Perhaps his two sons were bound to disagree, and to dispute how things ultimately happened. Of course, it would have helped if Mr. Andelson had named one son with clear authority in both his will and his power of attorney. It might have helped if he had made clear how important it was to him to be scattered in the sea off Los Angeles County as opposed to, say, Orange County.
How can you avoid a similar dispute among your children? Be clear. Be consistent. Make — and pay for — arrangements in advance. Prepare your documents all at one time, rather than piecemeal. Share those documents — and your wishes — with all of your family. That might be the best you can do.