Instructions for the final disposition of remains in Florida

By Steven J. Gibbs, Esq.

When it comes to your Florida estate planning documents, among the easiest areas to overlook is the instructions for the disposition of remains in Florida.

This is a huge issue for families because the right instructions can bring closure and foster harmony, and the lack of clear instructions can lead to appalling consequences such as nasty fights and even expensive legal disputes that can rip families apart.

Instructions for the final disposition of remains in Florida can be given in a simple form (known as inter vivos instructions). These instructions, at a minimum need to be sufficient to direct your loved ones and appointees about what needs to happen to your physical remains and who is responsible to make it happen. There are a few other things to consider when preparing these instructions.

Consider the following real life scenario:
A client had been estranged from her children for many years and retained estate planning legal services to write an estate plan. The plan specifically excluded the children from the estate and gifted the remaining estate assets to the client’s friend. The friend also was appointed in various estate roles. The client never got around to completing the directions for final disposition of her remains. However, she did discuss her wishes with her best friend and a number of other parties. The client passed away and the children never attended the funeral service. However, when the funeral director asked the children to sign off on the cremation, in accordance with the client’s expressed wishes, the children refused to do so. Despite the clear authority of the client’s friend, who was the healthcare surrogate, the refusal by the children tied the funeral director’s hands and resulted in estate litigation in Florida.

The Legal Aspects of the Disposition of Remains in Florida
Not too long ago, there was no clarity in the Florida statutes or case law concerning who “owns” a deceased person’s body. On October 1, 2005, the Florida legislature amended FL Stat. 470 and 497, and established a new law to govern the funeral and cemetery industries. Under the new law, there is now a list of “legally authorized persons” who are deemed to have the authority to make decisions concerning the final disposition of remains in Florida. The amendment also established priority of authorized persons if no written instructions are given.

The first legally authorized person is the deceased person them self. However, in order to be given “priority” as a authorized person (decision maker), he or she must write his/her wishes in an “inter vivos instruction”. However the tricky part is that under the amended statutes, an “inter vivos instruction” means that instructions in a “testamentary document” such as a last will and testament. The case law does suggest that the deceased person’s intent expressed in a will or trust should be honored and the courts are often guided by these wishes; however, this there is always possibly for dispute with this approach.

INTER VIVOS INSTRUCTIONS FOR THE DISPOSITION OF
REMAINS IN FLORIDA [3 Key Areas]
To avoid confusion and achieve maximum clarity in preparing the inter vivos instruction, the following 3 areas should be included in the inter vivos instructions for the disposition of remains in Florida.

Identify State of Jurisdiction Over the Disposition of Remains
The state where the deceased person’s remains are upon death generally has jurisdiction to determine what happens to them absent other guidance. The courts’ reasoning in these cases has been that the state has a strong interest in assuring the burial of those who pass away within its borders. Inter vivos instructions can clear up the question of the state of jurisdiction and resolve what could erupt into a major court battle. Simply stating something such as “I intend that my remains be transferred to my home state of Florida for internment, memorial services and cremation” can eliminate massive stress and conflict.

Describe Deceased Person’s Intent for Disposition of Remains
The majority of the states place a great weight upon the expressed intent of the person, as is the case concerning the disposition of remains in Florida. The cases, for the most part, have considered the intent of the deceased person in light of the circumstances. So, the best policy is creating a clear inter vivos instruction for the disposition of remains which includes the specific intent of the deceased person such as “cremation”, “burial” and “sprinkling of ashes.”

Appoint Legally Authorized Person to Handle Disposition of Remains
If the deceased person leaves clear inter vivos instructions, he or she is deemed to have first priority as an legally authorized person.

So, the first priority is to establish YOURSELF as an authorized person by leaving inter vivos instructions.

The appointment of someone to enforce the final disposition of remains in Florida is an entirely different legal appointment than the healthcare surrogate role. So, even if the healthcare surrogate is appointed and authorized in a Florida healthcare directive to make decisions concerning the disposition of remains, it is important to take the additional step of appointing them in separate instructions.

Tip: It is important that inter vivos instructions for the disposition of remains be executed with the assistance of experienced legal professionals to ensure that proper formalities such as a sworn affidavit are followed.

Although, final disposition of remains in Florida is a highly overlooked aspect of Florida estate planning, yet as with most areas of proactive estate planning, it takes only seconds to prepare. Yet this simple act can save family relationships AND months, or even years, of conflict and courtroom drama.

Steven J. Gibbs is a trust and estate planning attorney who provides complete Estate Planning, Trust Planning, Business Planning, Asset Protection, Elder and Medicaid Planning, Real Estate, Probate and Trust Administration legal services in Florida and California. Steve’s main offices are located in Fort Myers, Florida, and San Juan Capistrano, California. Estate planning legal services are provided statewide in these locations.

The Gibbs Law Office was founded by Steven Gibbs in January 2009 upon the commitment to provide client-centered legal services.

Steven Gibbs founded the Gibbs Law Office in January 2009, committed to providing client-centered legal services.

Steve as he would rather be called, is not your typical attorney.  If you appreciate the staunch egotistical mannerism of most firms, you will be delighted with Steve’s unpretentious approach to educating and then assisting his client.  Instead of giving you his complacent and lofty ideas, he would rather pursue your expectations with professional conversation about resolving your concerns under the Law.  It’s your life and it’s his job to make your legal expectations come true while using years of his guidance and knowledge.

Steve was admitted to the Minnesota Bar in 1999, the Florida Bar in 2007 and was recently admitted to the California bar. Keeping abreast of law changes in these three States, as well as the United States, assists him in all aspects of the types of law the firm practices.

Along his career path, he was an associate attorney for an insurance defense law firm; an in-house real estate negotiator for Target Corporation; and corporate counsel for Civix, LLC and Vice President for North American Properties where he was responsible for various real estate transactions, including legal issues and negotiating unresolved business issues.  Prior to opening Gibbs Law Office, PLLC, he was an associate with the firm of Roberts & Engvalson, P.A. where he gained his knowledge of trusts, estate planing and Wills.  He opened his own firm in 2008 and now focuses on laws that will enrich the needs of his clients throughout their lives and those of their children.  The firm has developed a practice dealing only with Trusts and Estate Planning, Wills, Medicaid Planning, Elder Law, Real Estate, Business Law and Probate.

Quoting from Steve “I decided to practice in areas that families will need as they progress down life’s path.  To help them with a solid foundation that will carry them throughout there lives is a rewarding experience for me and my staff.”