Column One:
Eye on Unmarried America

February 13, 2006  



New law gives 'control of remains' to surviving partner

by Thomas F. Coleman

New York Governor George Pataki recently signed a bill that gives domestic partners the right to control the disposition of the remains when one of the partners dies.  The new law places a domestic partner, just like a spouse, ahead of parents, children, or other blood relatives in terms of funeral decisions.

The measure had strong bipartisan support, passing the Republican-led Senate by a vote of 58-0 and the Democratic-led House by a vote of 94-25.  Gov. Pataki is a Republican.

The new law also had strong public support.  Some 83% of New Yorkers favored the bill, with  89% of Democrats, 81% of Independents and 76% of Republicans in support.

Under the new statute, top priority goes to the person designated in a written document signed by the deceased.  A simple, one paragraph statutory form has been created to make such a written designation easy to accomplish.

Absent a written directive of this nature, the next highest priority to control disposition of remains goes to a surviving spouse or domestic partner.  Next priority is to an adult child, then to a parent, then to other blood relatives.

This type of legislative clarity is important not only to unmarried couples, but to all unmarried Americans.  While it has always been assumed that a surviving spouse will control funeral arrangements, things can get confusing and emotionally charged when a single person dies, and a real tug-of-war can erupt when estranged relatives try to step ahead of a surviving partner.

I recall only too vividly what happened several years ago when my friend Claudio called me after his domestic partner died.  Bob and Claudio had been living together in New Jersey for about eight years. 

Before Bob passed away he signed a will and executed a durable power of attorney for health care.  Both documents stated that Claudio would have authority to control the disposition of Bob's remains.  Claudio was also to inherit the house which Bob owned.

Then came the moment of truth. 

Claudio called me in a state of panic.  As soon as Bob died, his parents and 12 siblings started acting as if Claudio was a perfect stranger to Bob.  They wanted Claudio out of the house immediately and wanted to give him no say about funeral arrangements. 

I flew to New Jersey the next day and went with Claudio to the mortuary.  We presented the will and the power of attorney to the funeral director as proof that Claudio should control decisions regarding the obituary notice, funeral service, and burial.  After all, that's what Bob had put in writing.

It was as if these legal documents were garbage.  They meant nothing to the mortuary.  Blood ruled.  Domestic partners were irrelevant.

Excuses were made as to why both documents were not controlling.  "The will cannot be filed for probate for 13 days after death in New Jersey, and until that time it means nothing," we were told.  "The power of attorney was signed in a hospital in New York and so we do not have to recognize it here in New Jersey," the funeral director added.

So the content of the paid obituary notice was up to Bob's parents.  Not surprising, that notice did not mention Claudio. 

Claudio went to the viewing and to the funeral service, even though he was told by Bob's relatives that he was not wanted.  But the family's negative behavior was so strong that Claudio decided not to go to the gravesite.

New Jersey now has a statewide domestic partnership law which was enacted about a year ago.  Registered partners have the right to control disposition of remains should one of them die, even if blood relatives object.

Claudio and Bob did all they could at the time, but there were no laws back then specifically giving priority to a domestic partner to control disposition of remains.

Each state sets its own rules when it comes to mortuary services and funerals. 

A surviving spouse always has top priority to make decisions, which pretty much ends the matter when a married person dies.  But  for unmarried Americans, the legal waters are muddy. 

New Yorkers now have clarity, but what about some relief for the rest of Unmarried America?

The "control of remains" statute in New York is a model which should be replicated throughout the nation.  Single people in general, and domestic partners in particular, would benefit immensely if sympathetic legislators in other states would secure passage of similar bills in their state houses.

Unmarried America 2006

Thomas F. Coleman, Executive Director of Unmarried America, is an attorney with 33 years of experience in singles' rights, family diversity, domestic partner benefits, and marital status discrimination.  Each week he adds a new commentary to Column One: Eye on Unmarried America. E-mail: Unmarried America is a nonprofit information service for unmarried employees, consumers, taxpayers, and voters.