• What is a Directive for Disposition of Remains?

What is a Directive for Disposition of Remains?

In 2006, New York State enacted a new law permitting individuals to designate an agent to control the disposition of their remains. The form is frequently called “Designation for Disposition of Remains”, although as a practical matter it also can include instructions for funeral and other post-death arrangements.

The Legislature adopted this law to give persons more control over decisions that might be made after they die. Just as with a Power of Attorney you can designate an agent to act on your behalf, or with a Health Care Proxy you can designate an agent to make decisions for you, a Directive for Remains and Funeral Arrangements permits you to designate the person or persons who will be your agent to receive your remains and carry out your funeral wishes.

You do not want to put these instructions into your Will because that document might not get read immediately after you die, and furthermore there is the risk that without it being submitted to Surrogates Court for the probate (or proving) process your loved ones will not agree on what should be done.

The law permits you to decide whom to invest with this important responsibility, and it also means that you can ensure that your loved ones know your wishes and have the authority to do what you want to be done after your death. A simple hand written note is not sufficient. There are certain formalities that must be followed to comply with the law.

If you do not designate an agent, the law names a hierarchy of people who have the right to control the disposition of your remains:

(a) surviving spouse
(b) surviving domestic partner
(c) any of the surviving children over 18 years old
(d) either of the surviving parents
(e) any of the surviving siblings over 18 years old
(f) a guardian appointed by the court or
(g) the fiduciary of the estate.

A “domestic partner” under this law is someone who:

(i) is formally a party in a domestic partnership entered into pursuant to the laws of the United States or of any state, local or foreign jurisdiction; or
(ii) is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or
(iii) is at least eighteen years of age and dependent or mutually interdependent on the other person for support, indicating a mutual intent to be domestic partners. To prove this status you will need a number of original governmental and financial documents that establish at least six months of cohabitation.