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Case Law Update: Who has the right to control disposition of a deceased person’s remains?

Posted Wednesday, July 2, 2014 by Christopher L. Thayer

A recent Court of Appeals (Division III) case, Whitney v. Cervantes, addressed a dispute over who had the right to control disposition of a deceased relative’s remains. Lawrence Wilhalm died in 2011. He was not married and had no children. His only living relatives were his nieces and a nephew.

alt textMr. Wilhalm had executed a Will in 1999, which expressly included burial instructions – requesting a burial in accordance with his religious beliefs and internment of his remains at the church cemetery. The Will further specifically identified a funeral home, the make and model of his casket, the description of his tombstone and the color of the suit that he wanted to be buried in. This Will provided that he reserved the right to modify his funeral arrangements in a separate “letter of internment”. In 2010, Mr. Wilhalm executed a separate document entitled “Burial Instructions”, which provided for a different funeral home, and further, that the Personal Representative of his Estate was to make arrangements for the burial, transportation and internment of his remains. A dispute arose after his death over the internment of the remains, as one of his nieces objected to the use of a particular funeral home – different than the one identified in his Will. The Court of Appeals ruled that the underlying trial court had properly dismissed a claim by one of decedent’s nieces against the funeral home, noting that the funeral home had the right to reasonably rely on the “Burial instructions”, even though they may have differed from some of the language in the Will.

In Washington, the right to control the disposition of a deceased’s remains has been codified by statute in RCW 68.50.160. A person has the right to control the disposition of his or her remains. All that is required is “a written document expressing the decedent’s wishes regarding the place or method of disposition of his or her remains, signed by the decedent in the presence of a witness….” If a decedent has not made any provision for the disposition of his or her remains, and no pre-arranged pre-paid disposition has been set up, then the right to control the disposition of the remains falls to (in order): (1) surviving spouse, (2) surviving adult children, (3) surviving parents, and finally (4) surviving siblings.

The Whitney decision and RCW 68.50.160, make it clear that it is important to address end-of-life issues and clearly document your wishes. This helps prevent disputes with loved ones and ensures that your legacy is honored in the way that you want – not in the way that someone else may think you want after you are gone. Make things easier for your family and loved ones and ensure that as part of your estate plan, you have clearly documented your wishes with regards to your remains.

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