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When a loved one passes away, it is a very emotional time for family and friends. Grief and sadness are fresh. It’s a horrible time. If the death was unexpected, there is also the shock and angst that comes with an untimely passing.

These are difficult days and weeks in anyone’s life – but it’s especially hard when there are questions and issues about the funeral arrangements and the manner in which the loved one’s remains should be handled. It is not unexpected that sometimes controversies between family members and close friends result in an emergency trip to the courthouse for a legal fight over what should be done.

Angelo Dall'Oca Bianca - Dor

Image: “Pain” After the Funeral by Angelo Dall’Oca Bianca (1876)


Florida Law and Funeral Arrangements and Disposition of Decedent’s Remains

For many years, there was little guidance given in Florida statutes in these matters. You couldn’t look to a provision of the Florida Probate Code and find the answer. Judges had to make these decisions as best they could with what was presented to them by parties on both sides of the conflict.

There were, and are, some places for families (and judges) to look for the last wishes of the decedent. This includes guidance provided by:

  • provisions found in the language of the Last Will and Testament;
  • an informal document like a letter or note;
  • insurance policies and funeral plans that gave instructions on what to do insofar as the funeral service and disposition of the body itself;
  • religious tenets may guide everyone on what to do; and
  • other documents, like donor cards for organ donation and transplant can help here.

However, what if the family members cannot agree on what to do, even if there is some guidance provided? Family members can find themselves at loggerheads over these decisions.

When the decedent has failed to make funeral arrangements in advance as part of their estate planning, families are left to make these decisions — that often means that probate lawyers are asked to get involved. Which means the application of Florida law and going before the Florida probate court to make the determination.

Florida Law and Funeral Arrangements / Disposition of Decedent’s Remains

There are some laws passed by the Florida Legislature that can help in these conflicts. Among them are the following:

1. Florida Statute 497.002(2) which provides that “[s]ubject to certain interests of society, the Legislature finds that every competent adult has the right to control the decisions relating to her or his own funeral arrangements.”

2. Florida Statute 497.005 which provides that if there is more than one legally authorized person who can claim a body for interment, then requests shall be prioritized by the medical examiner in accordance with the Florida intestacy statute that gives the order of family members who inherit if the person dies without a will.

However, there is little case law from the Florida courts to give precedent and guidance in how these laws are to be applied here. The court cases that are on the books have judges disagreeing on how these statutes are to be applied and when they are to be used.

One of the biggest legal controversies remains deciding how much the decedent has the right to decide how his or her remains will be handled upon her death. Another big open issue, decided differently depending upon which Florida judicial region you reference, is who gets to make these kinds of decisions when the decedent has died without leaving any written instructions.

The Anna Nicole Smith Case As An Example

In the case of Arthur v. Milstein, 949 So. 2d 1163 (Fla. Dist. Ct. App. 2007), Vergie Arthur as natural mother and next of kin of the decedent, Vickie Lynn Marshall a/k/a Anna Nicole Smith, and Howard K. Stern as the person named Personal Representative in her Last Will and Testament, could not agree on where Anna Nicole should be buried.

Another player in this controversy was Richard Milstein, who had been appointed by the court as the guardian ad litem of Dannielynn Hope Marshall Stern, the daughter and minor child of the decedent. He spoke on behalf of Anna Nicole’s daughter.

As her mother, Vergie argued that she had the decision-making power because of Florida Statute 497.005(37). Mr. Milstein, on behalf of Anna Nicole’s only living child, argued that he had the right to make the decision based upon Florida Statute 406.50 because the body had been kept at the Medical Examiner’s Office and the Medical Examiner’s Act therefore controlled.

The Florida trial court judge ruled in Dannielynn’s favor. So Vergie filed an emergency request with the First District Court of Appeals, asking that the lower court’s decision be reviewed and reversed in her favor.

The appeals court came at the problem from another direction. It ruled that neither mother nor daughter had a winning argument insofar as who was the “legally authorized person” to make the decision about where to bury Anna Nicole Smith.  Legally, the court held that “… neither section 497.005(37), nor section 406.50, control the outcome of this case.”

Instead, the court found the case to be where private parties were in a dispute as to the decedent’s remains; there was no funeral home nor medical examiner as a party asking for the court’s help. The statutes referenced by Vergie and Dannielynn dealt with funeral homes and medical examiners, so they didn’t apply.

The Florida appeals court made its decision based upon past court decisions, not looking at any statutes. Specifically, three cases: Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005); and Leadingham v. Wallace, 691 So.2d 1162 (Fla. 5th DCA 1997).

Looking at these past case decisions for guidance, it was decided that there was evidence presented at trial that “… Anna Nicole Smith’s last ascertainable wish with respect to the disposition of her remains was that she be buried in the Bahamas next to her son Daniel Wayne Smith.

Neither Vergie nor Dannielynn ever disputed this evidence. Therefore, Anna Nicole Smith’s body would be buried in the Bahamas, as Dannielynn (through her guardian) had requested.


For Reference:

Florida Statute 497.005 – Legally Authorized Person Priority List

Under the current version of Florida Statute 497.005 (39) “legally authorized person” is prioritized as follows:

(a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;

(b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent’s United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while in military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;

(c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;

(d) A son or daughter who is 18 years of age or older;
(e) A parent;
(f) A brother or sister who is 18 years of age or older;
(g) A grandchild who is 18 years of age or older;
(h) A grandparent; or
(i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.

What Should You Do?

A good piece of advice is to talk with a Florida probate lawyer to learn about your rights.  Most probate lawyers, like Larry Tolchinsky, offer a free initial consultation (either over phone or in person, whichever you prefer) to answer your questions.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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