Jewish World Review March 28, 2005 / 17 Adar II, 5765
Jan L. Warner & Jan Collins
I want to pick where I'm buried
Q: After my first wife died 15 years ago, I moved from the Midwest to the South for a change of scenery. I was 67 at the time and, not being a spring chicken, I did not expect to remarry but I did, 10 years ago, to a woman four years my junior.
Unfortunately, my three children have not taken well to the new relationship and, while they call once or twice a week, I only see them and my grandchildren if I go back to where I used to live. My wife had no children with her first husband, who also died. We are both fairly comfortable financially, and she understands that my estate plan calls for me to provide for her during her life and then pass it on to my children.
Here's my dilemma: The gravesite where my first wife is buried is a family plot in my former hometown where I am supposed to be buried. At the time of her death, I erected a dual headstone that requires only my name and dates of my birth and death to be etched on it and the burial of my remains next to her. I am nearly 83, and have changed my mind and don't want to be buried there. Rather, I want to be cremated and have my ashes buried next to my current wife, who has been a blessing to me. I have agonized about this for more than a year because I am worried that my children will swoop in and take my body and bury me where I don't want to be buried. I don't know whether to put my wishes in writing in my will or power of attorney or in a separate document. I have seen two lawyers, who have given me little help.
A: In our mobile society, more and more Americans like you will neither die nor be buried where they once lived. And since there is comparatively little law on the topic, where you will be buried could well be the subject of expensive litigation and angst unless you unambiguously state your desires in writing. And if you later change your mind, make sure to confirm that change in writing to make clear exactly what you want to be your last words on the topic. But where do you write those words?
Before you assume your burial wishes are legal and binding because they are included in your will, we suggest that you make sure that the law of your state of residence considers your body to be your property and follows the "testamentary disposal" theory (where your properties are disposed of as per your wishes). If it does not, your burial directions may well be ignored by a court as not being conclusive, especially if there is other evidence of your desires such as third persons saying that you told them that you changed your mind after you signed your will, etc.
If you have not left an appropriate and enforceable plan in writing, there could well be a dispute between your spouse and children about your last rites and the issue of cremation certainly intensifies the difficulty.
Because there have been different rulings among the various state courts about whether provisions in wills for the disposition of one's body are binding, it would appear to us that the safest way to deal with this issue would be for you to prepay for all of your burial services that is, pay in advance not only for your new burial plot, but also for your cremation services and related expenses. You should also write the cemetery where your first wife is buried, state that you will not be using your cemetery plot, and even go to the extent of transferring the plot to one or more of your children. One reader who contacted us about this topic told us that he had replaced the double headstone on his first wife's grave with a single headstone. Depending on the law of your state of residence, you may include in your will a financial penalty provision that will be applied to any beneficiary who contests or disputes your final burial wishes.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
© 2005, Jan Warner