A01238-NY-Disposition of Remains

June 29, 2005

Relates to the rights of certain individuals of the decedent to control the disposition of such decedent's remains in the absence of a written instrument; creates a priority list of those persons which may have the right to control the disposition of the decedent's remains; gives domestic partners the same priority status as surviving spouses; defines domestic partner. To create a formal mechanism to carry out a person's wishes regarding the disposition of their remains. To establish the rights of spouses/domestic partners, family members and others to dispose of the remains of a deceased person.

Section 1 of the bill creates a new section 4201 of the Public Health Law, and establishes subsections 1 through 8.

Subsection 1 establishes definitions for cremation and disposition of human remains. The subsection also defines domestic partner and reasonably available.

Subsection 2 creates a hierarchy of individuals who have the right to dispose of remains of a deceased person if those instructions are not in the deceased person's will. Those individuals are:

• The person designated in a written document, Appointment of Agent to Control Disposition of Remains, created by this section of law;
• The surviving spouse or domestic partner;
• Any surviving children eighteen years of age or older;
• Either of the surviving parents;
• Any surviving siblings eighteen years of age or older;
• A guardian; or
• A fiduciary of the deceased person's estate.

Subsection 2 also creates a process that allows the next person in the hierarchy to control the disposition of the deceased person's remains if the original person designated to do so is not reasonably available, or is unwilling or not competent to serve.

Subsection 3 creates a written instrument entitled, Appointment of Agent to Control Disposition of Remains.

Subsection 4 provides that a person may provide for disposition of his or her remains in a will or written instrument executed pursuant to this section.

Subsection 5 creates provisions for revoking an individual's written instructions for disposition of his or her remains.

Subdivision 6 establishes that directions in a deceased person's will for the disposition of their remains shall be carried out without the necessity of probate.

Subsection 7 exempts from liability any person who reasonably and in good faith represents himself or herself as the person in control of the deceased person's remains, reasonably and in good faith disposes of the deceased person's remains in a manner not contrary to the deceased person's wishes, or reasonably and in good faith identifies the deceased person.

Subsection 8 exempts cemetery, crematory and other funeral-related entities from liability for taking actions reasonably and in good faith to carry out written directives of a deceased person in a will or written directive.

Subsection 9 provides that disputes relating to disposition among persons of equal priority shall be resolved by a court of competent jurisdiction.

Section 2 creates an effective date of 180 days after the bill has been signed into law.

Justification

Having the ability to create a comprehensive end-of-life plan is a fundamental right every New Yorker should possess. This bill fills a gaping hole in that intensely personal matter, as New York is one of only eleven states that does not provide a mechanism to dispose of one's remains. The bill upholds the fundamental right of ensuring that one's end-of-life wishes are followed. The right to delegate or entrust the disposition of one's remains to another is as significant as the right of disposition itself.

Under current law, a will allows an individual to specify their wishes concerning disposition of property after death; a health care proxy allows an individual to specify someone who will make medical decisions in the event they become incapacitated; and a proxy can be used to instruct that an individual's body be donated to science. But there is no formal mechanism in New York to allow an individual to designate who will have the legal right and responsibility to control and carry out their burial wishes.

This has resulted in disputes over who has the right to dispose of a loved one's remains, although court rulings have clearly stated that an individual has the right to direct the disposition of his or her remains after death. This conflict has led to more confusion with funeral homes, crematories, and cemeteries.

The bill creates a written instrument that allows an individual, before they die, to name a person or people who would carry out the decedent's expressed written wishes regarding the disposition of their remains. The bill also creates a rank-order list of people who can make those burial decisions absent a written directive, beginning with a person who has been named as a designated agent in the written instrument. Next in line are the deceased person's surviving spouse or domestic partner, then surviving children 18 years of age or older, then surviving parents, then surviving siblings. As important, the proxy itself is inexpensive and simple, making it accessible to the poor and user friendly for everyone, including our seniors.

The tragic events of 9-11 painfully revealed how vital and necessary it is for New York to have such a formal mechanism that this bill establishes to ensure that one has the ability to create a comprehensive end-of-life plan. Not only is there currently no proxy form to specify how to dispose of one's remains and no established rank-order list of who should have the legal right to dispose of one's remains. There is also currently no way to recognize domestic partnerships.

This bill defines and includes domestic partnership in the rank-order list. After 9-11, surviving domestic partners faced difficult challenges when they tried to claim rights to a lost loved one's remains. They were often left powerless, even after spending decades with their domestic partner, having to allow parents or siblings, whom were sometimes estranged from their partner, to control the decedent's remains. Lacking the authority to carry out a loved one's end-of-life plan is not only dishonorable but it is undignified.

This bill recognizes the dignity of loving, committed relationships by including domestic partnerships in the rank-order list. The definition sufficiently provides for varying circumstances under which a lifelong partner would qualify as a domestic partner. They meet the requirements of the definition if they are registered as domestic partners in New York City or covered under one of the person's employment benefits or health insurance. If they do not meet either of these, they would provide documentation specified in the bill establishing dependence or mutually interdependence on the other person for support, indicating a mutual intent to be domestic partners. The definition is taken from New York State Department of Civil Service. The inclusion of this definition prevents the usurpation of the intended wishes of a loved one to dispose of the remains, upholding a fundamental right that all New Yorkers should possess. Any other determination that would be made against those wishes is tantamount to desecrating those remains.

Resources

• Same as S 1924-A
• Bill Text HTML Format
• Legislative History
  • 01/19/2005 referred to health
  • 05/03/2005 reported referred to codes
  • 06/17/2005 amend (t) and recommit to codes
  • 06/17/2005 print number 1238a
  • 06/24/2005 reported referred to rules
  • 06/24/2005 reported
  • 06/24/2005 rules report cal.998
  • 06/24/2005 substituted by s1924a
  • S01924A AMEND= BALBONI
  • 02/07/2005 REFERRED TO HEALTH
  • 06/17/2005 AMEND (T) AND RECOMMIT TO HEALTH
  • 06/17/2005 PRINT NUMBER 1924A
  • 06/24/2005 COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 06/24/2005 ORDERED TO THIRD READING CAL.1954
  • 06/24/2005 PASSED SENATE
  • 06/24/2005 DELIVERED TO ASSEMBLY
  • 06/24/2005 referred to codes
  • 06/24/2005 substituted for a1238a
  • 06/24/2005 ordered to third reading rules cal.998
  • 06/24/2005 passed assembly
  • 06/24/2005 returned to senate