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Who Gets to Make Burial or Cremation Decisions?

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Burial or cremation

It’s becoming a more common dispute: who gets to make the decision between burial or cremation? Can you direct your own preference in advance? What happens if there is no clear decision — who gets to decide for you?

In Arizona, almost two-thirds of all funeral/burial arrangements involve cremation. That’s a higher rate than the national average. Nationally, about half of dispositions are by cremation. That much-lower rate is pulled down by states in the deep South (plus Utah), where the cremation rates are well under one-third.

But who gets to make the “burial or cremation” decision? In Arizona, at least, you get a say in your own funeral arrangements. A recent Tucson case demonstrates both how that works and why it is important to make advance arrangements.

The sad death of James David Ghostley

James Ghostley was 30 when he died in November, 2018. He had a five-year life partner, Lauren, though the couple had not married. They did have a daughter together; she was four when her father died.

James had a fairly large family. His parents were divorced, and his father remarried. His obituary lists seven siblings, one step-brother and three living grandparents.

What James didn’t leave behind was any clear written instructions about his ultimate disposition. His partner Lauren was very clear: James told her that he wanted to be cremated, and his ashes scattered “in the places that he loved.” Had they been married, her directions would have prevailed.

Lauren nonetheless made arrangements for James’ cremation. When his mother learned, she made clear that she did not approve — and she expressed her doubt about James’ wishes, for that matter. Her lawyer sent a “cease-and-desist” letter to the funeral home. The burial or cremation decision would have to wait.

James’ father weighed in. He was adamant: he knew James preferred cremation, and he intended to see to it that his son’s wishes were carried out. The father filed a court proceeding, asking the Pima County (Tucson) probate judge to direct cremation.

The trial: burial or cremation?

At trial both Lauren and James’ father testified that James was in favor of cremation. His mother testified that cremation would be contrary to her religious beliefs, and would cause her “emotional torment.” She was also distressed about the proposal to divide James’ ashes between her, his father and his partner. She testified that her religious beliefs dictated that his remains be kept together.

The probate judge ruled that James had wanted cremation, and that his wishes should prevail. The judge ordered cremation, and division of the ashes between mother and father. If his mother did not want to claim any of his ashes, they would all go to his father for disposition.

The judge’s order was entered just three weeks after James’ death, but his mother appealed. The court put the burial arrangements on hold during the appeal, and James’ body was embalmed and held by the funeral home for more than a year.

Last month, the Arizona Court of Appeals upheld the probate judge’s order. James could be cremated, and his remains divided between his parents.

The Court of Appeals decision

The appellate court actually had two issues to deal with. First: was it even the probate court’s business to determine James’ burial arrangements? The second question: if so, was the decision correct?

Arizona law on burial arrangements is a little clearer than that of some states. But, like most states, Arizona’s approach is mostly to focus on duty, rather than power. In other words, the legal question is not so much who gets to make decisions as it is who has the obligation to make arrangements.

One Arizona statute dictates who must arrange to dispose of bodies. Arizona Revised Statutes section 36-831(A) lists the people with a duty, in priority order. In James’ case, that statute meant that his parents had equal obligations, and equal authority. It also provides that if they couldn’t agree, a majority of them could make the decision. Of course, seeking a majority of two people who disagree leads to a legal conundrum.

A separate Arizona statute gives the courts power to decide disputes between people with equal priority to make disposition decisions. The Court of Appeals agreed that the probate judge’s power was not just to decide between competing applicants, but included the power to decide the ultimate burial or cremation decision, as well.

But what about James’ wishes?

Finally, the Court of Appeals approved the probate judge’s interpretation of Arizona law regarding how to make the decision. What if the decedent’s wishes are known? The statute in question directs that whoever makes funeral arrangements “shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”

But James’ mother argued that cremation imposed extreme “emotional hardship” on her. She could not reconcile cremation with her strongly-held religious beliefs. She was one of the people authorized to make burial decisions, and she argued that the emotional hardship on her should prevent cremation.

The Court of Appeals disagreed, upholding the probate judge’s decision. That statute allows a decision-maker to consider emotional hardship, but does not require it, ruled the appellate court. Ordinarily, the decedent’s know wishes should outweigh any financial or emotional hardship on the survivors.

With the Court of Appeals ruling, the saga of James Ghostley’s cremation drew to a close. His father finalized cremation arrangements and disposition of his ashes as ordered by the probate court. In the Matter of Ghostley, January 22, 2020.

Is there a lesson for the rest of us?

Of course there is a broader lesson. Do you strongly favor (or object to) cremation? You should make your wishes known — in writing — to help guide the decision-maker. Better yet: pre-pay for your funeral and burial arrangements, so that no one on the list of people with responsibility have to make any of your decisions for you.

We have written about the “burial or cremation” question before. In one earlier report, we described a particularly troubling Wisconsin case. In that case, the decedent had signed documents, gotten his family to agree not to interfere, and clearly expressed his wishes. Nonetheless, after his death his mother intervened and dictated her own wishes for her late son’s funeral and burial. We thought then (in 2000) that Arizona law would lead to a different outcome. We now strongly believe that the Wisconsin case would have turned out differently in Arizona.

What can you do to help your family (and others) follow your wishes? Make them clear, in writing, and well in advance. Do you favor cremation? You might want to sign an Arizona Cremation Directive, have it witnessed and notarized, and give it to family members. Talk about it, and make sure they know what you want. Best of all: make arrangements with your funeral provider, and pay for them in advance.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.