When working on an estate plan, most of the focus is on “stuff.” It is easy to make a list of financial assets, heirlooms, real estate and other physical items acquired, and put together how you want to dispose of those items in a will or in a trust. One important thing not to overlook is your ultimate last wishes concerning your funeral and the disposal of your body.

In New York, Public Health Law §4201 covers the disposition of remains, which includes who has the right to collect your body and handle funeral arrangements.

Appointment of an Agent by a Writing

First priority is given to an agent designated in “a written instrument,” and Public Health Law §4201(3) provides the form for a basic instrument to make this designation. The New York State Department of Health has this basic form available in English and Spanish.

The Disposition of Remains form (or “DoR”) includes space for outlining any special arrangements desired (religious or otherwise), provides a means of notifying your agent if you have a pre-paid funeral plan, and space to nominate successor agents. It must be signed before two witnesses, who are eighteen or older. Unlike many other legal documents, this form does not have to be notarized.

When it is time for the agent (or successor agent) to act, the agent has to sign a short acceptance portion on the form. This should not be signed in advance, as the agent may not survive the person making the appointment.

It is also possible to designate an agent and outline funeral directions in a will, but it is simpler and easier to have a separate DoR. Less signing formalities are required for a DoR than for a will, and it also allows you to keep your funeral arrangements separate from your financial arrangements.

Appointment of an Agent under the Law

If there is no written instrument appointing an agent, then the Public Health Law has a list of people who have the right to collect the body and handle funeral arrangements. The descending order of priority is as follows:

the decedent's surviving spouse / domestic partner;
any of the decedent's surviving children eighteen years of age or older;
either of the decedent's surviving parents;
any of the decedent's surviving siblings eighteen years of age or older;
a guardian appointed by the New York Surrogate’s Court
any person eighteen years of age or older who would inherit under intestacy, with the person closest in relationship having the highest priority;
a duly appointed fiduciary of the estate of the decedent;
a close friend or relative who is reasonably familiar with the decedent's wishes, including the decedent's religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act; or
a chief fiscal officer of a county or a public administrator appointed by the New York Surrogate's, or any other person acting on behalf of the decedent, provided that such person has executed a written statement as outlined in the Public Health Law.

As in many cases, if you don’t leave written instructions, the law gives preference to family members. This can be incredibly problematic if you are estranged from your family, and your final wishes may be ignored without a designated agent and written instructions. Not only is this an issue if your religious beliefs are different from your family’s beliefs, but it has been a significant issue for LGBTQ+ members.

At a time when funerals are already difficult due to COVID-19, taking the time to complete a DoR can guide your friends and family to respect and comply with your final wishes.

By: Martha L. Voelz, Esq.
Of Counsel, the Ciric Law Firm, PLLC

This material is for general information purposes only and should not be construed as legal advice or any other advice on any specific facts or circumstances. No one should act or refrain from acting based upon any information herein without seeking professional legal advice. The Ciric Law Firm, PLLC makes no warranties, representations, or claims of any kind concerning the content herein. The Ciric Law Firm, PLLC and the contributing presenters or authors expressly disclaim all liability to any person in respect of the consequences of anything done or not done in reliance upon the use of contents included herein.