Who can make burial arrangements in Florida?

One question the top Jacksonville elder law and estate planning attorneys often receive is who can make burial arrangements in Florida. Does it have to be the next of kin, or can any family member or interested party make funeral arrangements? Another similar question we often receive is what happens if a family member refuses to sign for burial rights? This article should answer these issues by explaining the current Florida law.

Luckily, Florida law has tried to clear up any burial issues by codifying an extensive set of rules for burial rights. A person can find the relevant law under Florida Statute 497.005 (43). The first part of this statute defines some important terms under the law. For instance, the law defines “human remains” as the body of a deceased human person that requires a death certificate or fetal death certificate, and the body is in a stage of decomposition.

The primary section needed to solve these questions is found under number 43, which is the definition of “legally authorized person.” This definition is a priority list for what individual can make funeral arrangements. According to the statute, the decedent, or the dead person, has priority to make the choice. This means during the decedent lifetime he or she authorized a particular burial plan through an estate planning document. This type of authorization is likely found in a Living Will or another form of an advanced directive. For example, a common type of burial authorization will be a listed preference for burial or cremation.

The next person on the priority list is a guardian selected by the decedent.   This will be a person designated by the decedent as authorized by certain documents. A form such as Pub L. No. 109-163, s. 564 can designate a guardian or a form by the United States Department of Defense Record of Emergency called Data DD Form 93.

Florida law gives the next preference to the decedent’s spouse. A court will not give a spouse rights if he or she was arrested for domestic violence against the deceased, and will not be named if he or she caused the death of the spouse.

If there is no spouse, or the court has disqualified the spouse, then the court will give burial rights to another family member based on the following order:

  1.  A son or daughter who is 18 years of age or older;
  2. A parent
  3. A brother or sister who is 18
  4. A grandchild who is 18
  5. A grandparent
  6. Any person in any degree of kinship.
  7. If no other family member is available, then the guardian of the dead person, the personal representative, the attorney in fact, or the surrogate is given burial rights.
  8. If none of the above can serve, then a public health officer, medical examiner, county commission or another public administrator is given rights.

So this should help to answer the question of who has burial rights when a family member dies. To recap, the decedent, the decedent’s guardian, the spouse, family members, and if there are no family members, a public official is given the rights. This should mean that if the court gives one family member burial rights, and he or she does not act on this right, then the court would award another family member the right based on the statutory preferences listed above.

For more information on how to obtain funeral and burial rights for a loved one contact The Law Office of David Goldman PLLC today at 904-685-1200.

Contact Information