Don't Die in Iowa: Restoring Iowans' Right to Direct Final Disposition of Their Bodily Remains

• Author: Timothy J. Farmer
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.A., The University of Washington, 2007
• Pages: 1813-1840

1813

Don’t Die in Iowa: Restoring Iowans’

Right to Direct Final Disposition of Their

Bodily Remains

Timothy J. Farmer



ABSTRACT: Iowa has long been a bastion of support for a decedent’s right

to control disposition of her remains. In early 2013, the Iowa Supreme Court

made an unprecedented move when it interpreted Iowa’s Final Disposition

Act as entirely eliminating that right—even when a decedent repeatedly and

incontrovertibly expresses her wishes. This Note argues that the Iowa General

Assembly did not intend this result, and proposes two modifications to the Act

that can both facilitate the Act’s purpose and restore the decedent’s right to

direct disposition of her remains. First, this Note proposes that the Iowa

General Assembly modify the Act to require funeral directors to provide their

clients with resources that will help them ensure that survivors honor the

client’s wishes regarding final disposition. Second, this Note proposes that the

Iowa General Assembly modify the Act to include a presumption, rebuttable

only by clear and convincing evidence to the contrary, that the person entitled

to control disposition of a decedent’s remains acts in accordance with the

decedent’s wishes.

 J.D. Candidate, The University of Iowa College of Law, 2015; B.A., The Universi ty of

Washington, 2007. I would like to thank Professor Lorie Schweer for providing the idea for this

Note, and Professors Thomas P. Gallanis and Sheldon F. Kurtz for their guidance. Next, I would

like to thank Ellen G. Alessio, Sandy J. Helle, and Brad J. Brady of Brady Preston Brown, PC, for

their input and for providing me with the court documents in this case. I would also like to thank

the editors and writers of Volumes 99 and 100 of the Iowa Law Review for their valuable help and

feedback. Finally, I would like to thank my wife Mindy for her unfailing support.

1814 IOWA LAW REVIEW [Vol. 100:1813

I. INTRODUCTION ........................................................................... 1815

II. BACKGROUND ............................................................................. 1817

A. IOWA’S HISTORY OF A DECEDENT’S RIGHT TO DIRECT DISPOSITION

OF HER REMAINS ................................................................... 1818

B. THE FINAL DISPOSITION ACT ................................................. 1821

C. THE IOWA SUPREME COURT’S OPINION IN IN RE ESTATE OF

WHALEN .............................................................................. 1823

III. THE IOWA GENERAL ASSEMBLY’S INTENT IN ENACTING THE FINAL

DISPOSITION ACT IS AMBIGUOUS, AND THE WHALEN COURT

SHOULD HAVE TAKEN MORE CARE WHEN ELIMINATING COMMON

LAW RIGHTS ................................................................................ 1825

A. THE IOWA GENERAL ASSEMBLY’S INTENT IN ENACTING THE FINAL

DISPOSITION ACT CANNOT HAVE BEEN TO ELIMINATE A

DECEDENT’S RIGHT TO CONTROL DISPOSITION OF HER

REMAINS ............................................................................... 1827

B. THE IOWA GENERAL ASSEMBLY’S INTENT IN ENACTING THE FINAL

DISPOSITION ACT MAY ACTUALLY HAVE BEEN TO PROTECT THE

DECEDENT’S RIGHT TO DETERMINE DISPOSITION OF HER

REMAINS ............................................................................... 1830

C. THE FINAL DISPOSITION ACT DOES NOT CONTAIN AN IMPERATIVE

STATEMENT ELIMINATING THE COMMON LAW RIGHT TO

DETERMINE DISPOSITION OF ONE’S REMAINS .......................... 1833

IV. PROPOSED MODIFICATIONS TO THE FINAL DISPOSITION ACT .... 1835

A. THE FINAL DISPOSITION ACT SHOULD BE MODIFIED TO REQUIRE

FUNERAL HOMES AND DIRECTORS TO HAVE FORMS ON HAND BY

WHICH CLIENTS CAN ELECT DESIGNEES ................................. 1836

B. THE FINAL DISPOSITION ACT SHOULD BE MODIFIED TO CREATE A

REBUTTABLE PRESUMPTION THAT THE PERSON CONTROLLING THE

DISPOSITION OF A DECEDENT’S REMAINS ACTS IN ACCORDANCE

WITH THE DECEDENT’S WISHES .............................................. 1837

V. CONCLUSION .............................................................................. 1840