Adults can provide instructions in their will regarding disposition of their remains or designate a person in their will who will make that decision. However, many people die without a will. In that situation, who decides what happens to your body when you die?
Who Decides How Your Remains Are Disposed of When You Die in New York?
In New York, the person with decision-making authority regarding disposition of remains is prioritized in the following descending order: (1) person designated in the will; (2) surviving spouse, (3) surviving domestic partner; (4) surviving children aged 18 or older; (5) surviving siblings aged 18 or older. There are other provisions dealing with close friends or relatives who are familiar with the decedent’s wishes.
Does Your Life Partner Have the Right to Decide What Happens to Your Body When You Die?
Many people enter into long-term relationships but choose to never get married or refrain from remarrying after experiencing divorce in their lifetime. Unfortunately, often in the eyes of the law, unmarried partners are not as protected as their married counterparts when it comes to estate administration. This lack of uniformity in the law concerning married and unmarried persons exemplifies why estate planning is so important regardless of marital status but especially if partners are not married.
For example, in situations where someone passes and leaves behind a life partner whom he or she has not married prior to death, post-mortem planning can become tricky. Life partners are often the ones who know each other’s wishes regarding disposition of their remains. However, without a will, surviving partners may not have the right to make such decisions for their deceased partner unless they are deemed “domestic partners” under New York law.
The term “domestic partner” is defined as: (1) someone who is formally registered as the domestic partner of the decedent; (2) someone who is formally recognized as a beneficiary or covered person under the decedent’s employment benefits or health insurance or vice versa; or (3) someone who is dependent or mutually interdependent on the decedent for support. The third category of dependence is determined by considering the totality of the circumstances, which must illustrate a mutual intent to be domestic partners. Some factors demonstrating this intent include but are not limited to common ownership or joint leasing of property; living together; shared income or expenses; children in common; signs of intent to marry or become domestic partners; and the length of the couple’s relationship.
As a result, if an unmarried partner can put forth enough evidence that they depended on the decedent for support during their lifetime, it is likely that a domestic partner’s wishes regarding a decedent’s remains will prevail. However, if the situation is unclear and there is insufficient evidence of interdependence, surviving children may go to court to supersede the wishes of an unmarried partner and potentially prevail over the surviving partner.
What Should You Do If You Are Involved in a Dispute Over the Remains of a Loved One?
If you are ever in a situation where a body is to be disposed of and there are disagreements over whose wishes will prevail, you should seek the help of a knowledgeable estate planning attorney who can help you file for a temporary restraining order until the court determines the issue.
Contact one of our attorneys to discuss your dispute or to execute a valid will to ensure that your loved ones don’t argue over your remains.