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Who Can Authorize Cremation in Pennsylvania? July 23, 2019

Who can authorize cremation in Pennsylvania?  A new law changed part of the right to disposition law in Pennsylvania to allow for majority rule.

When someone desires cremation as a method of disposition, it’s important to consider the legal progression for complying with their wishes after death.

Legal Next of Kin

Until very recently in Pennsylvania, all legal immediate surviving representatives of the same order of succession would have to unanimously agree on the cremation for it to take place. The legal next of kin are organized in the following tiers: surviving spouse, all surviving children, all surviving parents, all surviving siblings, all surviving grandchildren, and all surviving grandparents.

In the case of a widow who passes away, all surviving children would have to consent to the cremation; if there are no living children, both surviving parents would have to consent, etc.

Family Members Who are Estranged

For the most part, the law only became an issue with family members who were estranged. It would not be terribly uncommon for a widow to pass away with several surviving children, and for there to be one or more estranged children who the siblings cannot contact.

Even worse are cases where one of the legal next of kin of the same tier does not consent to the cremation, at which point the court would have to get involved and make a determination, usually based on the preference of the family member who had the closest relationship to the deceased.

Both situations become time-consuming, expensive, and can engender animosity among family members.

New Law Effective December 22, 2018

In October of 2018, Governor Tom Wolf signed SB 180 (part of Act 90 of 2018) into law. Upon its effective date of December 22, 2018, it changed, among other things, part of the right to disposition law in Pennsylvania to allow for majority rule among family members of the same tier to determine disposition without repercussions or having to petition the court.

Not only does the passage of this bill save families time and money by avoiding the court, but it is useful in cases where one authorizing family member cannot be contacted, or to avoid cases where a single estranged family member could prevent the wishes of the deceased from being honored out of malice.

Importance of Making Wishes Known

Though the bill will likely reduce the incidence of cremation and funeral service providers being caught in the middle of feuding families, it is still important for those who desire cremation to make their wishes known to those who will ultimately be responsible for authorizing that decision, preferably in writing.

It can be difficult to broach the subject, particularly with a spouse or child, but even by telling family members that your wishes are recorded and where to locate important legal documents can save time and heartache.

Remember, while it is good practice to include your wishes in a will or living trust, it serves no purpose if nobody will find these documents until after a funeral or cremation has already taken place.

If, based on the order of succession listed above, you have no family members who will be responsible for making the decision for you, it is even more important to have your wishes included in a legal document and share these wishes with a friend, neighbor, power of attorney, or future executor or administrator of your estate. And by including your wishes in an advance directive or by making your funeral arrangements in advance, little doubt will remain as to what your wishes are when the time to make these decisions inevitably arrives.