I wrote the book on Minnesota probate.

What Happens To Mom’s or Dad’s Body?

On Behalf of | Feb 1, 2011 | Firm News |

Mom Has Passed Away

Mom just died in Minnesota and the children are fighting over whether she should be cremated, where the funeral should be and where she should be buried. This can be a very difficult time for the family, and unfortunately, can be a very common situation. Emotions may be fiery, but there are important legal implications to be aware of, too.

An Unpleasant And Emotional Issue

This is one of the most unpleasant and emotional issues that can come up when a loved one dies. Because it has come up many times in the past, the Minnesota Legislature has established rules to help avoid these conflicts among Minnesota families.

Under the law, the highest priority is in a written instruction signed by the loved one. He or she can designate the person to make the decisions about what happens to their body. This written document can be a Will, a Health Care Directive or other written instructions. A Power of Attorney cannot be used for this designation.

If the deceased person did not leave a written instruction, then there is a hierarchy of family members who are given the authority to decide what should happen to the body of the loved one.

The Order Of Authority In Making Decisions Regarding The Body

First of all, the spouse of the deceased person (also known as the decedent) gets to make the decision. If there is no surviving spouse, then the child or children of the decedent can make the decisions.

If there are no children, then the parents of the deceased person have the authority to decide.

Next the brothers or sisters can get the call. From there, the grandchildren of the decedent and then the grandparents get the power to decide.

After that come nephews or nieces and then the guardian of the decedent if one has been appointed.

The tenth priority goes to a person who had shown “special care and concern” for the deceased person.

After that, more remote relatives and public agencies can decide.

What If There Is A Dispute About The Body?

If there is a dispute about who gets to make the decisions, any of the family members or a funeral director can ask the district court to rule on who should decide. Funeral directors or morticians generally cannot be sued for their good faith judgments if they are relying on the statements of family members.

When family members understand how the decision is made about what will happen to Mom’s or Dad’s body, then an emotional argument can be avoided and the family can concentrate on the grieving process and the important adjustment that must be made after the death of a loved one.

The contents of this video are for information only and is not to be interpreted as legal advice. For personal legal advice you should consult with an attorney who is experienced in probate law or estate planning.