Although no one wants to think about their passing, it is important to create a comprehensive estate plan that will ensure your last wishes are met. Not only should you think about who will get your property and assets, but you will also need to consider the final disposition of your body. This means having a plan in place that determines what will happen to your remains — and who has the right to direct the disposition of your body after your death.
What is the Right of Disposition of Your Body?
The right of disposition refers to who has the authority to carry out your plans regarding what will happen to your body when you pass away. Ohio law specifies that you may execute a written declaration that assigns a representative the right to direct the disposition of your body, as well as the right to make arrangements for your funeral service. Significantly, even if you have named an executor of your estate in your last will and testament, this person would not have any rights when it comes to the disposition of your body unless you specifically give them this authority.
In order to name a decision maker who will carry out your wishes regarding the disposition of your body, the written declaration you execute must include certain information and a statement that the document is effective upon death. Importantly, your name and permanent address are required to be on the form, along with a statement that you are of sound mind and have appointed a representative both willfully and voluntarily. In addition, the law requires language specifying that all decisions made by your representative concerning the disposition of your body are binding.
The representative’s contact information must also be included on the form, along with the information for any successor representative designated. The form must be dated and signed in the presence of either a notary or two adult witnesses who are not related to you.
Who Holds the Right of Disposition if You Didn’t Appoint Someone?
It is crucial to specify how you wish your remains to be handled and name an individual who you wish to have the right to direct the disposition of your body in your estate planning documents. Failure to do so can result in Ohio law determining such matters — which can result in unintended consequences. Under the Ohio Revised Code, specific individuals hold the right of disposition in the following order of priority:
- A representative appointed by the decedent in a written declaration
- The surviving spouse
- The majority of the adult children who can be located
- The decedent’s parents
- The majority of the decedent’s adult siblings who can be located
- The majority of the surviving grandparents who can be located
- The majority of the adult surviving children whose location is known
- The lineal descendants of the decedent’s grandparents
- The decedent’s legal guardian at the time of their passing
- Any person who is willing to carry out the disposition after a good faith effort has been made to locate any of the above individuals
In the event the person who passed away is under the responsibility of the state, a public officer or employee can assume responsibility for making the final disposition arrangements.
Losing the Right of Disposition
Under certain circumstances, the person with the right of disposition can lose their right pursuant to Ohio law. For example, if a person is under 18, of unsound mind, cannot be located, or failed to exercise the right within two days of the decedent’s passing, they would not have the right of disposition — regardless of their priority order under the statute. Ohio law also provides that the right of disposition could not be exercised if an action to terminate the marriage was pending at the time of death or the decedent’s spouse was estranged.
Other situations in which the right of disposition can be lost include those where the individual with the right was responsible for, or contributed to, the decedent’s passing. For instance, a person who has been charged with murder or manslaughter in connection with the decedent’s death cannot legally have the right of disposition. Similarly, a person who has been charged with an act of domestic violence which caused the decedent’s passing will lose the right.
What this Means for Unmarried Partners
Notice that in the list of people having priority above, nowhere is there a place for long-term live-in significant others. A person that you have lived with, and even have had minor children with, has no rights to determine what happens to your remains unless nobody else listed comes forward. Say your parents have always disliked your live-in significant other: the parents would have control and there is nothing your partner can do about it after you are gone.
Without a designation in place for body disposition, if you are unmarried, your parents are deceased, and if you have no siblings or adult children, a cousin you have not spoken with since childhood could make the decision of whether to bury or cremate you, where you will be buried, and whether your body parts are donated. You don’t want that, and neither does your cousin.
Contact an Experienced Ohio Estate Planning Attorney
When it comes to estate planning, it’s vital to have a plan in place for not only the distribution of your property, but also for the disposition of your body upon your passing. Located in Green, Ohio – halfway between Akron and Canton courthouses – Melissa Graham-Hurd & Associates, LLC provides compassionate representation to clients for estate planning matters and helps to ensure their final wishes are carried out. Contact Melissa Graham-Hurd and Associates to schedule a consultation to learn how we can help.