Thursday, March 22, 2007

Disposal of Remains in PA: Pt I

No advance directions and different post-mortem proposals for disposition of the remains of Anna Nicole Smith (buried March 2, 2007) and James Brown (buried March 12, 2007) resulted in disputes among their survivors.

These disputes stirred general interest in funeral planning. Ronald Hem, Esq. wrote a short, excellent article about the subject, entitled "Let loved ones know your funeral plans", published on March 18, 2007, in the Chicago Beacon (Chicago Sun-Times News Group).

If you have signed your will and/or trust, powers of attorney and retitled your assets, if appropriate, you are probably ahead of most people when it comes to getting your affairs in order. However, you should not consider your task complete unless you have also given some thought to your funeral and the disposition of your remains.

Planning your funeral and making your wishes known to your loved ones is important in order to avoid placing them in the uncomfortable position of guessing what you would want to have done. Doing so also increases the likelihood that your wishes with respect to major issues such as whether to have a funeral service, a memorial service or no service, a visitation or no visitation, a closed or open casket, burial or cremation, will be carried out.

Too often estate planning attorneys (included this writer) fail to give sufficient emphasis to the importance of funeral planning.
Vendors and non-profit organizations promote advance funeral arrangements. For example, Consumer Advisory Association asks (& answers) relevant questions on its website:

Why should I leave written instructions about my final ceremonies and the disposition of my body?
Why not leave these instructions in my will?
What happens if I don't leave written instructions?
What details should I include in a final arrangements document?
As to failure to plan, CAA indicates a possible result:
Disputes may arise if two or more people -- the deceased person's children, for example -- share responsibility for a fundamental decision, such as whether the body of a parent should be buried or cremated. But such disputes can be avoided if you are willing to do some planning and to put your wishes in writing.
The Pennsylvania Funeral Directors Association commissioned & then published online a study regarding funeral arrangements in Pennsylvania. The 43-page report was entitled 2005 Funeral Planning Study.
To obtain these opinions, telephone interviews were conducted with a random sample of Pennsylvania residents 50 years of age and older.

Topics that investigated in this research included:
• Persons who would prearrange or prefinance a funeral
• Perceived importance of using a licensed funeral director
• Benefits of prearranging or prefinancing a funeral
• Interest in prefinanced funds being portable between funeral homes.
Some of the findings relate to the extent of pre-planning:
Respondents were fairly evenly divided when asked if they know anyone who has prearranged a funeral. Slightly over half (52.9%) report knowing someone who has done so.
Respondents are less likely to know someone who has prefinanced a funeral (43.8%).
Almost three-fourths of the respondents (70.4%) know someone who has made arrangements with a cemetery. Of these, most have purchased a cemetery plot only (69.7%).
See the entire report for the detailed findings and data analysis.

If no "funeral planning" is done, what rules apply to disputes about the disposition of remains in Pennsylvania?

On March 12, 2007, the PA Superior Court issued an 11-page opinion providing guidance.

Kulp v. Kulp (Pa. Superior Court, No. 269 MDA 2006), the setting of the dispute was a divorce action. Separated parents disagreed about the disposition of their late son's cremated remains. In conjunction with equitable distribution of their marital property, a trial judge was called upon to resolve the dispute.

There were three alternatives considered by the Judge. Which, if any, would you choose?

  1. That the ashes be buried in a memorial park or cemetery of mutual choice within Schuylkill County, with a portion remaining in a keepsake for each party;
  2. That the ashes be placed in an above-ground urn niche in a memorial park or cemetery of mutual choice within Schuylkill County; or
  3. That the ashes contained in the present urn be divided and placed in two separate urns, with each party placing their individual urn at a site of their choosing.
The Superior Court accepted an appeal from the Judge's ruling.
The Superior Court considered two issues:

  • Were the ashes of the parties’ deceased child property of the parties and therefore divisible?
  • What factual analysis was required in making a decision for disposition of remains?
In Part II of this posting, I will analyze the Superior Court's decision, and then ask for input: How might Pennsylvania's law on this matter be reformed?

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Update: 03/23/07:

Part II of this posting is: Disposal of Remains in PA: Pt II (EE&F Law Blog, 03/23/07).