Testamentary Disposition of a Decedent's Body
| Publication year | 1989 |
| Pages | 435 |
| Citation | Vol. 18 No. 3 Pg. 435 |
1989, March, Pg. 435. Testamentary Disposition of a Decedent's Body
When an individual dies, authority to dispose of the decedent's body may be provided by written instructions. As CRS § 15-12-701 provides, "[p]rior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral, and burial arrangements. . . ." However, no Colorado cases construe this provision of the statute, and several questions remain unanswered, such as whether:
1) the Colorado statute suggests that written, but not necessarily testamentary, disposition regarding one's body is an absolute right;
2) the word "may" in the Colorado statute suggests that the fiduciary may elect not to follow the decedent's written directions;
3) the surviving spouse, children or more remote kin may prevent the decedent's wishes concerning disposition of the body from being honored;
4) the statute implies that following appointment, the executor must carry out a decedent's instructions, but until that time the decision remains permissive; and
5) there is an "order of preference" as to the wishes of the survivors (particularly the spouse) when their desires are contrary to the decedent's written desires.
This article discusses some of the issues that can arise when different interests are "competing" for a decedent's body. It also looks at how courts have interpreted several cases involving such situations in other states.
While attempted oral dispositions of an individual's remains seem problematical at best,(fn1) even testamentary dispositions are not absolute rights assuring compliance. Interests of the state and survivors in a dead body cannot be ignored.(fn2) Since there is no property right in the body,(fn3) a decedent's testamentary expressions are less than absolute.(fn4)
Numerous cases address the recognition of a quasi-property right in a decedent's body by those close in relationship.(fn5) This right includes the privilege of disposing of the body, and some states define by statute who may control the body, at least in situations that are absent directions by the decedent.(fn6) Generally, the decedent's surviving spouse has a right to dispose of the decedent's body that is paramount to all others, including the decedent's children.(fn7) However, questions remain as to the right of the surviving spouse to dispose of the body in a manner that is contrary to the decedent's written provisions. It is also unclear who prevails when the personal representative is someone other than the surviving spouse and their intentions are conflicting.
The law appears unsettled as it regards the binding effect of a decedent's express preferences concerning his or her body. Some courts give the decedent's choice precedence over competing interests.(fn8) The rationale for such cases is that, as long as they are lawful and perhaps...
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