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Health & Fitness

Who Decides if You are Buried or Cremated?

Believe it or not, a Minnesota statute addresses this question.

In Minnesota, state law sets out a priority for who has the right to control what happens to your body after you die.

You have top priority in deciding whether your body will be buried or cremated, and where your remains will be left. But to exercise this right, you must put your desire in writing, date it, and have the writing witnessed. In Minnesota, persons commonly state their burial-vs.-cremation preference in a Health Care Directive. This works well because the Health Care Directive is written, dated and witnessed. Instructions left in your Will also work in Minnesota because a Will is a witnessed, signed and dated writing.

If you haven’t written down your choice of burial vs. cremation, the person that you select in a signed, dated writing as your representative is given second priority in determining what happens to your body at death. Consequently, if you have a Health Care Directive, but you did not specify in that document what you wish to have happen to your body after you die, your health care agent could decide. Note that another common estate planning document – a Durable Power of Attorney document – doesn’t work for this purpose because the Durable Power of Attorney authorization terminates at your death.

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Third, your spouse gets to decide what happens to your body. If you have no living spouse, then your adult children, by majority vote, determine whether you are buried or cremated. If you have no children, but have a surviving parent or parents, they each have equal authority to determine what happens to your body.

Priority is then given under Minnesota law in the following order: adult siblings, then adult grandchildren, then your grandparents, then adult nieces and nephews, then your guardian.  Next in priority is an adult exhibiting “special care and concern” for the deceased, then next of kin beyond those mentioned already, and then the court or other public authority.

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If the person granted authority under Minnesota law is estranged from you at the time of your death, the next person in line is given the authority. If a dispute arises, the arguing parties, or the mortician or funeral director, may ask the court to make a determination.

In Minnesota, burial typically must occur in a legally registered cemetery. However, cremated remains may be buried or scattered on private property.

©2012, 2013 Wittenburg Law Office, PLLC. All rights reserved.

Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, Minnetonka  952-649-9771 www.bwittenburglaw.com  bonnie@bwittenburglaw.com

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