ESTATE PLANNING NEWSLETTER – WHO HAS THE RIGHT TO DISPOSE OF A DECEDENT’S REMAINS?

In the Estate of Nathleen Skinner, the court dealt with an interesting set of facts on disposition of human remains. Mr. and Mrs. Skinner both executed Durable Powers of Attorney for Healthcare. Each Power of Attorney authorized the attorney-in-fact to direct the disposition of the grantor’s remains pursuant to Tennessee Code Annotated Title 68, Chapter 4.

The dispute in the case was whether the wife’s Power of Attorney had the authority to dispose of her husband’s remains (the husband died three years before the wife, and his remains were cremated and held by the wife.) When the wife died, her remains were cremated and disposed of by her attorney-in-fact under her Power of Attorney. The husband’s children from a prior marriage filed suit against the wife’s attorney-in-fact to recover their father’s remains.

The court analyzed the authority under a Power of Attorney to dispose of remains. The court wrote that the wife’s Power of Attorney did not contain any express authority related to her predeceased husband’s remains. Instead, it authorized the attorney-in-fact to direct the disposition of her remains. Based on this analysis, the court held that the disposition of the remains of the husband were not authorized either expressively or implicitly under the wife’s Power of Attorney.

My Comment: The dispute in the Skinner case arose because husband and wife were in second marriages and each had children from a prior marriage. What unfortunately occurs many times is that the family of the second spouse to pass away has more authority over assets of the estate as well as the remains of the two decedents. Special planning is necessary in second marriage situations to provide properly for disposition of assets and disposition of remains.

Yours very truly,
RAINEY, KIZER, REVIERE & BELL, P.L.C.
William C. Bell, Jr., Attorney at Law