Who has the right to make decisions about burying a family member?
My father died; do I have the right to decide how and where he's buried, or does my stepmother?
Answer
Section 4200 of the Public Health Law states that a deceased person's body "shall be decently buried, naturally organically reduced, or incinerated within a reasonable time after death." Section 4201 of the Public Health Law lays out who has primary responsibility for making sure the body is buried or cremated, in descending order:
- The person designated in a written instrument signed and dated by the decedent (person who died); see §4201(3) for an example and the Department of Health's website for a blank form in English and Spanish.
- The decedent's surviving spouse or domestic partner
- Any surviving children who are 18 or older
- Either of the decedent's surviving parents
- Any of the decedent's surviving siblings who are 18 or older
- A court-appointed guardian (Article 17, Article 17-A, or Article 81)
- A court-appointed fiduciary of the decedent's estate
- A close friend or relative, if no one ranked higher on the list is available, willing, or able to oversee the burial
- A county's chief fiscal officer or public administrator
If there are multiple people in group 3, 5 or 7, and that group will be responsible for handling the burial, then the remains should be disposed of based on a majority decision of all the people in that group.
If you want to do more in depth legal research on this topic, you can access the resources below at your closest public access law library:
- In Westlaw's and Lexis's annotated codes, Notes of Decisions summarizes cases applying this law and the earlier common-law "right of sepulcher". Both platforms carry New York Jurisprudence 2d "Cemeteries and Dead Bodies."
- New York Consolidated Laws Service in Lexis has a form, "Petition or Application for Order Directing Interment of Remains of Decedent.". Also available via Lexis are two forms in 5B Forms for the Consolidated Laws of NY § 4200: PH4200:1 ("Complaint in Action for Negligent Failure to Discover That Hotel Guest Had Died") and PH4200:3 ("Order Granting Temporary Injunction of Funeral and Burial Services").
- In Westlaw, Pattern Jury Instruction 3:6 ("Intentional Torts—Interference with Person or Property—Outrageous Conduct Causing Emotional Distress") discusses sepulcher. Cases are indexed under the West Key Topic 116k1 Dead Bodies -- Right of possession and disposition in general.