Disposition of Remains: You Can’t Take It With You!

When you think of estate planning, your first concern is probably what happens to your family and your stuff when you pass away. But another small, often-overlooked aspect of estate planning is the disposition of remains—that is, what happens to your body after your death. As the saying goes, you can’t take it with you.

There are several options for bodily disposition and the choices go beyond just traditional burial and cremation and inurnment. You can even choose to have your remains made into a coral reef or jewelry or taken into outer space!

An option in which many clients have expressed interest is donation, both of tissues into living donors and of the body to science for research. Programs such as the Willed Body Donation Program at UT Southwestern Medical Center accept the bodies of deceased individuals, use them as appropriate in medical research, and then, depending on family preference, either return the cremated remains to the family, bury them, or scatter them at sea.

So, if you want to include your wishes for disposition in your estate plan, how do you do it? Your body is not part of your estate and isn’t handled through your will. Rather, in a document called the appointment for disposition of remains, you can state any wishes you may have and identify the agent whom you wish to entrust with the responsibility of making arrangements, plus a backup or two.

As I remind my estate planning clients, if you haven’t written your own estate plan, the state of Texas wrote one for you. In the absence of a written appointment of disposition of remains, Texas law gives priority first to the decedent’s surviving spouse, then to any of the decedent’s surviving adult children, then parents, siblings, and so forth. This statutory scheme may be consistent with many people’s wishes but would lead to a poor result for some. For example, if a person is unmarried but partnered, the partner will be below family members in priority. And, if a person has several children, all are on equal footing, regardless of which was closer to the decedent or more familiar with the decedent’s wishes. But an agent named in a disposition of remains has priority, so a client can choose to name their partner first, or the preferred child, or a friend, ensuring that this deeply personal matter is entrusted to the person of choice.

The appointment of disposition of remains is often an afterthought in estate planning but can be of great help to the loved ones left beyond, ensuring that there is no confusion about what you wanted or who you wish to entrust with that task. In explaining the benefit of this document to clients, I share as an example a sad situation in which a young adult died unexpectedly and their spouse and parents disagreed about disposition. The spouse had priority by law and made the decision but the disagreement led to a falling-out between them. Had the decedent completed a disposition of remains document stating their wishes, the family might instead have been able to work together to facilitate those wishes.

I often say that a good estate plan can’t make people who don’t like each other get along, but a thoughtfully drafted estate plan can help anticipate potential conflicts and mitigate the risk. Doing an appointment for disposition of remains is a great service to your loved ones, ensuring that when the time comes, your wishes can be honored and arrangements made by the agent of your choice.