Estate Planning Newsletter – September 2016

WHO CONTROLS THE INSCRIPTION ON A HEADSTONE OF A DECEDENT

In the case of The Estate of Teffany Love, originating in Madison County, Tennessee, the Court of Appeals provided clarity on the issue of who controls the inscription on a decedent’s headstone.  The legal authority for the determination of the outcome of the case is TCA Section 62-5-701, et seq., a statutory scheme enacted in 2012 dealing with the disposition of human remains.  In the Love case, the issue arose as to the inscription on the decedent’s headstone.  The decedent’s husband and two adult daughters put the name on the headstone.  The decedent’s mother and adoptive father petitioned the Probate Court for the name on the headstone to be changed.

The Probate Court ruled in favor of the husband and adult children, citing TCA Section 62-5-703, which provides for the priority on the right to control the disposition of the decedent’s remains, the location, manner, and conditions of disposition, and arrangements for funeral goods and services to be provided.  The order of priority is:  (1)  an attorney-in-fact designated in a Durable Power of Attorney For Healthcare; (2) the surviving spouse; (3) the sole surviving child of the decedent, and if there is more than one child of the decedent, the majority of the surviving children; and (4) the surviving parent of the decedent.  Both the Trial Court and Court of Appeals ruled that Section 62-5-703 also includes the right to control the decedent’s headstone and inscription thereon.

The Court of Appeals pointed out that, although Section 62-5-703 does not specifically address the inscription on a headstone, under statutory interpretation maxims, the right to control the inscription on a decedent’s headstone is included within the right of disposition of human remains and the right to make arrangements for funeral goods and services.  The Court wrote that the statutory language is sufficiently broad enough to include the right to include the inscription on a headstone.

MY RECOMMENDATION:   If the details of the funeral, or disposition of human remains, or inscription on a headstone are important factors, individuals should include such details as part of their estate plan.  Specifically, TCA Section 62-5-702 allows an adult to enter into disposition directions or a preneed funeral contract to direct the location, manner, and conditions of disposition of an adult’s remains and the arrangement of funeral goods and services to be provided upon the adult’s death.  Also, this type arrangement can be made in a healthcare directive.  The issue in The Estate of Teffany Love came about because the decedent did not make those decisions for herself.

Yours very truly,

RAINEY, KIZER, REVIERE & BELL, P.L.C.

William C. Bell, Jr., Attorney at Law