Who Has the Right to Make Funeral Decisions?

Who Has the Right to Make Funeral Decisions?

It's a sad and distressing time when a loved one passes away. In addition to the raw emotion of such a difficult time comes the administrative planning of a funeral.

There are many aspects of a funeral that need to be considered, including whether to cremate or bury your loved one, to hold a funeral service or a memorial service, whether to include any religious traditions, and if so, which ones, and finally, where should the events be held? Or maybe you want to choose whole body donation and hold your own private memorial service?

Sometimes, the family does not have to determine what to do; in many cases, the deceased has already pre-planned their funeral and created instructions about their wishes. Often in these cases, the preferences of the deceased must be followed. But what happens if the deceased did not indicate their preferences? Who then has the right to make the necessary plans?

Generally, the decision falls to the nearest relative, known as the next of kin, however this does vary by state. The next of kin hierarchy is as follows:

  1. An agent as specified via legal directives
  2. Spouse or domestic partner
  3. Adult children
  4. Parents
  5. Adult siblings
  6. Other relatives

The next of kin must be at least 18 years old. Biological and adopted relatives are considered to be on equal footing. If the next of kin cannot be located or is not able to make these decisions, then the hierarchy of kin relationships is followed until an appropriate next of kin is located. If the next of kin is contested, considering what the deceased would have wanted is the best course of action to avoid legal action.

In some jurisdictions, a non-family member who was close to the deceased may qualify as next of kin if no one within the hierarchy is available or able to complete the necessary tasks.

The next of kin is not necessarily obligated to follow the wishes of the deceased if these wishes are either difficult financially or are impractical to implement.

Note that every state has their own legalities regarding who has the right to make funeral decisions and how those decisions can be executed. Pre-planning a funeral and specifying your final wishes in a legal document ensures not only what you want, but will help you determine whether or not these plans are feasible and who can put these actions in motion upon your passing.

Keep your documents in a safe place and make sure multiple people know of these plans so that a sad time does not need to be a difficult one.