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
SUMMARY

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... (see full summary)

 
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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. IOWAS HISTORY OF A DECEDENTS RIGHT TO DIRECT DISPOSITION
OF HER REMAINS ................................................................... 1818
B. THE FINAL DISPOSITION ACT ................................................. 1821
C. THE IOWA SUPREME COURTS OPINION IN IN RE ESTATE OF
WHALEN .............................................................................. 1823
III. THE IOWA GENERAL ASSEMBLYS 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 ASSEMBLYS INTENT IN ENACTING THE FINAL
DISPOSITION ACT CANNOT HAVE BEEN TO ELIMINATE A
DECEDENTS RIGHT TO CONTROL DISPOSITION OF HER
REMAINS ............................................................................... 1827
B. THE IOWA GENERAL ASSEMBLYS INTENT IN ENACTING THE FINAL
DISPOSITION ACT MAY ACTUALLY HAVE BEEN TO PROTECT THE
DECEDENTS 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 ONES 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 DECEDENTS REMAINS ACTS IN ACCORDANCE
WITH THE DECEDENTS WISHES .............................................. 1837
V. CONCLUSION .............................................................................. 1840

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