Duties and Powers to Bury or Cremate

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In this article, we will summarize Arizona law on who has the duty and power to control the disposition of human remains – who gets to decide whether to bury or cremate a dead body, as well as some related issues.

The loss of a loved one is a difficult and unfortunate event.  The surviving family’s tasks following death can present additional challenges.  Between coping with grief and loss, planning funeral arrangements and handling estate matters, the last thing anyone wants to deal with is uncertainty or even a dispute over who has the duty and power to make funeral, burial or cremation arrangements.  Or, sometimes, mortuaries do not honor the written wishes of a beloved family member.

Fortunately, Arizona law has provisions for who has the power and duty to bury or cremate.  Here is a summary of Arizona law.

Arizona Priorities for Who has the Duty and Power to Bury or Cremate

Priorities for who has “the duty of burying the body of or providing other funeral and disposition arrangements for a dead person” are set forth in A.R.S. § 36-831(A).  The priority list in descending order is:

1. If married, the deceased person’s surviving spouse;
2. If the deceased person was single, legally separated, or divorced, the agent under a power of attorney of the decedent that was given the authority to make decisions regarding the disposition of the decedent’s remains;
3. If the deceased person was a minor, the parents;
4. The adult children;
5. The parent;
6. The adult sibling;
7. The adult grandchild;
8. The grandparent;
9. “An adult who exhibited special care and concern for the dead person;”
10. The guardian at the time of death;
11. To any other person who has the authority to dispose of the body; and,
12. Finally, if none of the foregoing, “on any person or fraternal or charitable or religious organization willing to assume responsibility”
13. “If the dead person was a prisoner in the custody of the state department of corrections at the time of death and none of the persons named in paragraphs 1 through 11 of this subsection is willing to provide for the burial or other funeral and disposition arrangements, or cannot be located on reasonable inquiry, on the state department of corrections.”

During a person’s life, any of the family members listed above can waive the right to control disposition of the dead body when the person dies.

Exceptions to the Priority List

You know the saying, “every law has exceptions.”  This situation is no different.  There are several other rules and exceptions to the priority list under Section 36-831(A), including the following:

• If none of the individuals listed in section A  “is willing or financially able to bury or provide other funeral and disposition arrangements for a dead person, or if the person cannot be located after reasonable efforts have been made to do so, the county in which death occurs shall bury or place in a permanent care crypt the dead body or cremated remains of a dead body.”
• If none of the individuals listed in section A handle disposition and if the decedent was an honorably discharged veteran or the surviving spouse of an honorably discharged veteran, the county is required to notify the United States department of veteran’s affairs or a local veteran’s organization to see whether they will provide for burial or other funeral and disposition arrangements.  If those departments or organizations do not do so, the county is then required to make sure that the deceased person “is properly interred and that burial is made in a veterans’ cemetery or a portion of a cemetery that is designated for the burial of veterans and spouses of veterans.”
• “If the county medical examiner or person performing the duties of the county medical examiner knows that the dead person is a member of a federally recognized Native American tribe located in this state, the county medical examiner or person performing the duties of the county medical examiner must notify the tribe and give the tribe the opportunity to provide for the person’s burial or other funeral and disposition arrangements.”  If an autopsy is required by section 11-597, the examiner is supposed to complete the autopsy and return the remains to the tribe within four days after the date of death.
• If the person who has priority under Subsection A is charged with the criminal death of the person, the power and duty to handle the affairs goes to the next person on the list.
• “If the decedent died while serving in any branch of the United States armed forces, the United States reserve forces or the national guard, and completed a United States department of defense record of emergency data, DD form 93, or its successor form, the duty to bury the decedent or to provide other funeral and disposition arrangements for the decedent devolves on the person authorized by the decedent pursuant to that form.”

What if there is More than One Person with Equal Priority?

One of the arguable purposes of the law is to anticipate problems and provide for resolving them.  Section 36-831(D) deals with a situation where there is more than one person in a single category with priority.

If there is more than one member of a category with priority listed in A.R..S. § 36-831(A) 3, 4, 5, 6, 7, 8 or 9 that is entitled to handle funeral and disposition arrangements, those “arrangements may be made by any member of that category unless that member knows of any objection by another member of the category. If an objection is known, final arrangements shall be made by a majority of the members of the category who are reasonably available.”

So, what if there is more than one person with priority in the same category and there is an objection, but no majority?  Unfortunately, that issue was not directly addressed in the statute, but it was answered in the Arizona Court of Appeals case in the Matter of the Remains of James David Ghostley, Deceased.  You should read our blog post about the Ghostley case for more information.  In summary, the Court found that where there is a disagreement over disposition arrangements between the decision makers in the same category, but no majority, the individual who is going to honor and follow the decedent’s wishes should be appointed to carry out those wishes.

What Happens if the Person with Priority Fails to Fulfill His Duty?

A person who has priority and fails (or is prohibited because he was charged with the criminal death of the person) to perform his or her duty to arrange for burial or cremation is liable to the person who performs the duty for twice the amount incurred to make the arrangements.  The person who performs the tasks and incurs the charges may recover that amount in a civil action.

What is the Person in Charge Required to Do with the Decedent’s Remains?

Separate from “who” has the duty and power to dispose of the remains is the issue of “what” should happen.  Specifically, for example:

1. what funeral arrangements;
2. whether the dead body should be buried and where,
3. or, whether the deceased should be cremated and what should happen with the ashes.

In other words, what is the person in charge required to do ?  Pursuant to A.R.S. § 36-831.01(A), “if the person on whom the duty of burial is imposed pursuant to section 36-831 is aware of the decedent’s wishes regarding the disposition of his remains, that person shall comply with those wishes if they are reasonable and do not impose an economic or emotional hardship.”

A.R.S. § 32-1365.01(A) permits, but does not require, a legally competent adult to prepare and sign a written statement directing the cremation or other legal disposition of the adult’s own remains.  The statement may be in a last will and testament or in a separate document.  If the directive is made in a separate statement, it must be signed, dated and “the document shall be notarized or witnessed in writing by at least one adult who affirms that the notary or witness was present when the legally competent adult signed and dated the document and that the legally competent adult appeared to be of sound mind and free from duress at the time of execution of the document.”

In the Ghostley case, the divorced mother and father of their deceased son could not agree on whether to bury or cremate his remains and the son left no written directions.  The father claimed that his son wanted to be cremated, while the mother objected to cremation on religious grounds and argued that her son would not have wanted to be cremated if he knew of her objection.  The Court found that the son wanted to be cremated and that the mother’s distress did not constitute a sufficient “emotional hardship,” as provided in Section 36-831.01(A), to overcome the son’s wishes.

Berk Law Group is Here to Help

Deciding whether to bury or cremate your loved one and related decisions should be the least of your concerns.  Unfortunately, problems and conflicts may arise.  Fortunately, Arizona law provides some guidance regarding the duty and power to bury or cremate and related issues.  If you have any questions, please give us a call at 480.607.7900 or contact our office.