Legal Question in Wills and Trusts in Pennsylvania

my sister was in the middle of a nasty divorce when she suddenly died. can the family take responsibility for her body or do we have to wait to see what her technically still husband wants to do. he now lives across the country.


Asked on 5/19/15, 2:38 pm

2 Answers from Attorneys

John Davidson Law Office of John A. Davidson

Under Pennsylvania law the death of on party in a divorce ends the divorce action. So they died married.

{John}

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Answered on 5/19/15, 3:41 pm

As noted by Attorney Davidson, your sister was still technically married so her spouse gets to make the decisions unless he relinquishes that right. However, if your sister had any kind of a separation agreement in which the husband waived his rights, maybe there might be an argument. What about any kind of a health care power of attorney? While powers of attorney end at death, sometimes these documents give a healthcare agent rights to make decisions regarding the disposition of your sister's remains. Or did she leave a will and other documents? These too may give a clue.

If your sister died, like most people, without a will or anything else, here is the PA law on this. You do have estrangement here so mabe you will be able to get results through a court order if the spouse will not give up his rights voluntarily.

20 Pa.C.S.A. § 305. Right to dispose of a decedent's remains

(a) General rule.-- Except as specified in subsection (a.1), the determination of the final disposition of a decedent's remains shall be as set forth in this section unless otherwise specifically provided by waiver and agreement of the person entitled to make such determination under this section, subject to the provisions of a valid will executed by the decedent and section 8611(a) (relating to persons who may execute anatomical gift).

(a.1) Exception for members of the armed forces.--The determination of the final disposition of a decedent's remains shall be as set forth in this section unless otherwise specifically provided by a DD Form 93 executed later in time than a valid will executed by the decedent or a waiver and agreement of the person entitled to make such determination under this section, subject to the provisions of section 8611(a).

(b) Disposition of the remains of a deceased spouse.--Absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence, a surviving spouse shall have the sole authority in all matters pertaining to the disposition of the remains of the decedent.

(c) Disposition of the remains of others.--If there is not a surviving spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.

(d) Procedure.--Where a petition alleging enduring estrangement, incompetence, contrary intent or waiver and agreement is made within 48 hours of the death or discovery of the body of the decedent, whichever is later, a court may order that no final disposition of the decedent's remains take place until a final determination is made on the petition. Notice to each person with equal or higher precedence than the petitioner to the right to dispose of the decedent's remains and to his attorney if known and to the funeral home or other institution where the body is being held must be provided concurrently with the filing of the petition. A suitable bond may be required by the court.

(1) If the court determines that clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement, the court shall enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate.

(2) If two or more persons with equal standing as next of kin disagree on disposition of the decedent's remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.

(3) If the court determines that the petition is not supported by a clear and convincing evidence, the court may award attorney fees. An award of attorney fees shall constitute a setoff against any claim by the petitioner against the estate.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Armed forces.” The armed forces of the United States, including a reserve component or the National Guard.

“Contrary intent.” An explicit and sincere expression, either verbal or written, of a decedent adult or emancipated minor prior to death and not subsequently revoked that a person other than the one authorized by this section determine the final disposition of his remains.

“DD Form 93.” A valid document or a successor form provided by the Department of Defense that is signed by a member of the armed forces and designates a person to direct the disposition of the remains of the person who signed the form.

“Enduring estrangement.” A physical and emotional separation from the deceased at the time of death of the person authorized by this section to determine the final disposition of the decedent's remains, which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the deceased.

“Next of kin.” The spouse and relatives by blood of the deceased in order that they be authorized to succeed to the deceased's estate under Chapter 21 (relating to intestate succession) as long as the person is an adult or an emancipated minor.

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Answered on 5/21/15, 3:07 am


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