Burial vs. Cremation When Family Members Can’t Agree. Who has the final say?

In death, one the most complex considerations of all is family dynamics. At a time when family members should be coming together to celebrate the life of a loved one (hopefully), death can too often be a divisive topic if plans were not discussed and decided upon in advance. This is where multiple factors, personal beliefs as well as legal determinations (next of kin) can kindle into potentially explosive exchanges between family members. This is definitively one of the most important reasons to plan ahead and make your wishes for your final arrangements well known. It can escalate into a barrage of “I know better than you know.”

“Mom would hate that!”
“Dad never liked that color.”
“I’m the oldest, so it’s my decision.”

The debates can range from the petty to the extreme. If it was not prescribed before the decedent’s death, some families can count on lighting the fireworks.

“What religious traditions, if any, should we incorporate in the service?”
“He should be buried next to mom,” even though he remarried.

Imagine there is more than one spouse with offspring from different spouses who all want a say.

One of the most hotly debated topics for final arrangements is Burial vs. Cremation. 

“I know mom wanted to be cremated.”
“I talked to dad a while back, and he wanted to be buried.”
“We should have a traditional funeral service instead of a memorial service.”
“Who is going to pay for it?”
“You make more money than I do.”
“My religion says cremation is wrong.”–“Well, my religion says cremation is OK.’”

And the potential debates and disagreements go on and on. Even though there is a protocol for who has the final say, there is often no winner in scenarios like these. Because ultimately, resentments are raised and fester like open wounds that tear families apart.

So, what is the protocol for final arrangements?  Who gets the final say on Burial vs. Cremation? 

The best and most amicable solution is to assemble several of the closest next-of-kin to discuss, input, compromise and agree on what they think is best for the decedent, as well as the family health as a whole. Conversations, finances, and where the remains will be laid to rest should all be discussed. If at last an agreement cannot be reached, there is a legal protocol as to who has the final say. First, you need to make sure of the following:

The deceased did not legally communicate their final wishes,
did not designate someone to make choices regarding their final disposition,
did not have a Last Will and Testament outlining their final wishes,
or, did not have any notarized affidavit as to their final wishes.

If none of the above occurred and there is ambiguity and disagreement as to the final arrangements, legally the decisions fall to the next-of-kin (or nearest blood relative). 

So, how is next of kin decided? 

Be sure to check your state specific rules and maybe even solicit the input of an attorney at the onset to make sure you have the correct hierarchy to avoid further dispute down the line.  From state-to-state, this is generally recognized as the next-of-kin hierarchy. 

First, next of kin must be 18 years of age or older. After that, this list applies equally regardless of whether you are adopted, biological, half-brother, stepsister, etc.

  • Spouse or domestic partner (common law marriage)
  • Children
  • Parents
  • Siblings
  • Authorized guardian
  • Grandchildren
  • Great-grandchildren
  • Nieces and nephews
  • Grand-nieces and grand-nephews
  • Grandparents
  • Aunts and uncles
  • First cousins
  • Great-grandchildren of Grandparents
  • Second cousins
  • Fiduciary (a legally appointed trustee)

Once again, this list should be scary enough to have anyone at least have a piece of hand-written paper with your basic wishes for your final arrangements outlined on it, have it notarized, and kept in a safe place that can be easily found or produced when you pass.

Death can tear families apart, even seemingly tightly knit families. And believe it or not, even if you made your wishes clear in a conversation with family, a conversation is not a legal document. Even if a family member is an executor for the will, this does not make them the next-of-kin when determining final arrangements. 

This is a tremendous reason to think ahead, plan ahead, and speak with a professional about planning for and even funding your own final arrangements to avoid any and all disagreements. This way, your final goodbye can be a moment of celebration and coming together rather than one of hostility and breaking apart a family you have built.

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