By: Rebecca L. Nichols, Esq.

Published at

4 July 2024

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Who Has the Right to Deceased's Body?

A funeral for a loved one can help the family remember and honor their life. It also gives peace to the person who passed away. In tough family situations, we may need to decide what to do with a deceased loved one's remains.

Who has the right to a deceased body?Who has permission to make the burial arrangements? What happens if the closest relative declines to take responsibility for the body? Can the decedent donate his/her body parts?  

Let's address these queries individually. 

Key Take-Aways
  1. In most places, the deceased can dictate their final wishes through a will or trust, including burial preferences and organ donation.
  2. If no instructions exist, priority for burial decisions falls to the spouse, adult children, parents, siblings, etc.
  3. People can donate their bodies or parts through documented consent.
  4. Unclaimed bodies become the responsibility of the county or the state anatomical board.

Can the Decedent Dictate What Happens to His or Her Bodily Remains After Passing?

In most cases, people plan their funeral arrangements and decide how to handle their bodies after they die. Thus easing the burden of their loved ones during a tough time.

This may involve making decisions about burial or cremation. You may also need to choose a funeral service, funeral home, or cemetery.

A legal document, such as a Will or Trust, can guide on handling a person's cremated remains after their death. These papers outline the preferences concerning interment or cremation. Additionally, it can detail any particular funeral plans or rituals that the individual wishes for.

You can choose whether you want

  1. A green burial or natural burial
  2. Water cremation such as alkaline hydrolysis
  3. In the ground burial
  4. Above-the-ground burial such as a tombstone

Such planned decisions can ease the burden on your loved ones during a tough time. Also, a clear plan can prevent family arguments.

This enables individuals to decide on their terminal care and ensures that desires are honored. Writing down the instructions can help ensure that the person's final wishes are carried out as intended.

The loss of a dear one is always difficult. Nobody can partake in your suffering.

But we can help you make crucial choices regarding what happens after you pass away. 

We are probate attorneys. We provide professionalism and guidance in this process. Book your consultation today. 


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Who Holds the Right to Decide the Disposal of a Deceased Person's Remains?

If there are no written instructions, certain family members can decide what to do with a dead body for burial.  

Where a decedent has not made provisions for funeral arrangements and the disposition of his or her body, Florida statute provides legal authorization to a funeral director to make these arrangements for a deceased person.

The order or priority of individuals authorized to make these arrangements is as follows:

  1. The surviving spouse.
  2. An individual who is aged 18 or above.
  3. A parent.
  4. A sibling who is 18 years of age or older.
  5. A grandchild who is 18 years of age or older.
  6. A grandparent.
  7. Any person in the next degree of kinship.
According to the Florida Supreme Court in Crocker v. Pleasant, 778 So.2d 978, 985 (Fla. 2001)
This case highlights the legitimate claim of entitlement held by a surviving spouse or next of kin to the possession of a deceased person's body for burial, sepulture, or other legal disposition in the absence of testamentary provisions to the contrary. This legal principle underscores the rights of the surviving spouse or next of kin to make decisions regarding the deceased person's body in accordance with their wishes.

Who Qualifies to Select a Coffin or Burial Plot?

When someone dies, their spouse or closest relative can make decisions about what happens to their body. This allows the next of kin to decide where to bury a person and which casket to use. You can include final wishes in legal documents such as wills or trusts. This can help the family carry out the wishes of the deceased individual.

Can the Decedent Donate His or Her Body or Body Parts?

People can gift their body or body parts after they die by writing them down in a document. This document can be a Will, organ donor card, Living Will, or advance directive. To make a gift or donation official, the giver needs to sign a written document. Two people must witness this document and sign it in front of the giver.

If a Will has a provision like this, it takes effect immediately after the person dies. It does not need to go through probate.

If a Will is invalid in court, the donation of the deceased person's body remains valid if made in good faith. The court may invalidate the Will, but the body donation remains valid.

This means that we will still honor the deceased person's wishes regarding their body. If the donor donated in good faith, the invalidity of the Will will not affect it.

What if a Decedent Does Not Make an Anatomical Gift During His or Her Lifetime?

Where the decedent has not provided for the donation of his or her body or body parts, family members may gift all or part of the decedent’s body. The order of priority of individuals authorized to make an anatomical gift is as follows:

  1. The decedent’s spouse.
  2. A grown-up offspring of the deceased.
  3. Either parent of the departed individual.
  4. An adult sibling of the departed.
  5. An adult grandchild of the decedent.
  6. A grandparent of the decedent.
  7. A close friend.
  8. A protector of the deceased individual at the moment of their demise.
  9. A representative ad litem appointed by a Court.
Suggested Read:  
Making Funeral and Interment Arrangements for your Loved Ones.Who Pays for the decedents funeral and interment expenses

What Occurs When the Family Refuses to Claim the Body?

If the decedent’s next of kin refuses to claim the decedent’s body, the county is responsible for burying the body at public expense. Florida law permits the Anatomical Board of the State of Florida to receive unclaimed remains. The board is at the University of Florida Health Science Center. They can also accept remains that are scheduled to be buried with public funds.  

Any person or entity in possession, charge, or control of unclaimed remains must immediately notify the Anatomical Board unless:

  1. The unclaimed remains are decomposed or mutilated by wounds, 
  2. An autopsy is performed on the remains, 
  3. The remains contain a contagious disease, 
  4. A legally authorized individual objects to the use of the remains for medical education or research, 
  5. The decedent was a veteran and is eligible for burial in a national cemetery, or 
  6. The decedent was the spouse or dependent child of a veteran eligible for burial at a national cemetery.

When someone dies, the closest family members are usually responsible for making decisions and arrangements for the burial. This means they have to plan the funeral and burial services. They may also have to decide on the type of casket or urn to use. Additionally, they may need to choose a burial plot or location for the deceased.

People can make legal documents like wills or trusts to share their preferences and wishes. This helps their loved ones during a tough time by reducing the burden on them.

A person can donate their body or body parts after death by legally documenting their intentions. In cases where there are no instructions or if the family refuses to claim the body, the responsibility for the burial of the human remains falls to the county or the Anatomical Board. Seeking legal guidance for probate matters is important to ensure the deceased's wishes are respected.

Other Useful Probate Blogs:

  1. How do I know if the decedent had a last will and testament?
  2. What assets are exempt from probate administration in Florida? 
  3. 12 mistakes as a personal representative you must avoid

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