Death is traumatic to survivors. It creates void in the lives of those you touched. From funeral arrangements to financial transactions, from the tasks of daily living to family celebrations, survivors must cope and learn to enjoy life without the deceased. One of the significant roles of estate planning is to ease the transition of financial transaction from the deceased to the selected survivors. But what happens if survivors disagree about fundamental issues, like what happens to the deceased person’s body? The right to decide what happens to a deceased’s body or cremains, including the location, manner, condition, funeral, goods and services, and related matters is called the “right of disposition.”
The person with the right of disposition will decide whether and where the deceased’s body will be buried, cremated, or donated. Fundamental disagreements about the right of disposition occur. Examples of when those disputes may occur include when the deceased was unmarried but had a significant loving relationship with another, when the person who possessed the deceased’s cremains dies, or when the deceased was unmarried and the parents and children disagree.
Like many states, Ohio allows you to choose how your body is disposed at death and choose the person or people who you authorize to make those decisions for you after your death. Ohio also defines who has authority to dispose of your body or cremains if you do not choose. Ohio grants the right of disposition in the following order of priority: surviving spouse, surviving child or children, surviving parent or parents, surviving siblings whether whole or half blood, surviving grandparents, surviving grandchildren, lineal descendants, the deceased’s guardian, any other person, and the State. This list is a good start but does not resolve the right of disposition.
The probate court in the county where decedent resided is authorized to assign the right of disposition. In making its determination, the probate court looks at factors like whether the person asserting the right had a close personal relationship with the deceased, the reasonableness and practicality of plans, financial responsibility, the convenience and needs of other families and friends, among other factors. These issues point toward litigation between rival persons disputing the right of disposition. Litigation is always difficult on a person’s financial and emotional well-being. That effect is amplified when suffered during a period of mourning over decedent’s death.
You can help ease this burden to your survivors. You have the right to assign the right of disposition to a person or group of people in the order you select. The right must be exercised by a written declaration.
We created a form you can access from our website for this purpose by clicking on this link. Or please click here to visit our “forms” page on our website. For decedents who die under active duty orders and who completed section 13a of DD Form 93, entitled “Person Authorized to Direct Disposition” that Form meets Ohio’s requirements for a written declaration.