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New Jersey Rules on Funeral Directives – What You Should Know

Posted on Thu Feb 5, 2015, on Funeral Directive

From our “Ask a Question” Mailbag: New Jersey Rules on Funeral Directives 

Most Recently Updated July 8, 2018.

“Who Decides Where and How You Are Buried in New Jersey?”

New Jersey Rules on Funeral Directives

New Jersey Rules on Funeral Directives 

Often the most sensitive question when estate planning – where and how do you want your remains disposed? I realize this appears morbid, but it is a necessary consideration. In New Jersey, the State has established default rules when a Will is silent on the issue, or if the testator fails to designate a specific person with authority over the decision. Similar to intestacy, these rules are utilitarian in nature. As with any one-size fits all rule, there will likely be family conflict and litigation. A recent case, argued up to the New Jersey Supreme Court, highlights the importance of considering the remains question before death.

A brief chronological background of the facts will better illustrate the point:

  • LM has 2 children with ex-wife Dorothy
  • ThenLM marries JM
  • LM & JM have 4 children
  • Then LM appoints 2 children from 1st marriage as co-executors in Will, no info concerning burial
  • LM dies
  • Executors bury LM in Dorothy’s family plot, against JM’s wishes
  • JM argues burial was proper in her family plot
  • 3 year litigation ensues

In New Jersey, who has the authority to decide burial arrangements?

The executors or the surviving spouse? Two provisions from the New Jersey Cemetery Act of 2003 were relevant to this case. The first addresses the burial itself, the default decision maker when no one is named in the Will. The second deals with disinterment i.e. who has the authority over removing a body already in the ground.

The primary point the Court makes is you always have the authority to determine your representative and arrangements. Planning ahead is the simplest way of achieving your goals. But, if your wishes are unclear or absent the result can be unexpected.

No Directives But You Are Married

In New Jersey, absent contrary written declaration in the Will, the surviving spouse has authority over burial decisions. Typically, that is the end of the inquiry. However, when a spouse is not named executor, and the children disagree resolution is not so simple. This case is a prime example of when the simple rule above fails.

The New Jersey Cemetery Act – The Disinterment Clause

The Court goes on to discuss the disinterment clause of the New Jersey Cemetery Act. The Act specifically includes a strong preference against disinterment. The surviving spouse does not have sole discretion with disinterment. In fact, where disinterment is concerned, the wife’s authority is shared equally with all adult children. In our case, at the date of the hearing, LM had long been buried. Therefore, JM’s insistence on disinterment was outweighed by the wishes of LM’s surviving adult children. The Court held that LM would remain buried next to his ex-wife, against the wishes of his widowed spouse. The widow who had a right to decide her husband’s burial in the first place!

How did the court arrive here?

A rule of statutory interpretation states that two provisions should be considered together when they relate to the same person or thing, or have the same purpose or object. Using this principle based on harmony, the Court found that even though JM should have initially had the authority to control the disposition, the preference against disinternment outweighed the concerns over initial authority.

So, even if LM understood the default rule and believed his wife would control the disposition of remains, his plan failed due to the intricacies of the New Jersey Cemetery Act. This lack of preparation cost his executors three years and real money fighting this issue in court. 

More Planning Questions?

New Jersey Rules on Funeral Directives is only a piece of the Estate Planning process. By all means, if you want to learn more, please read my more detailed article, Estate Planning Everything You Need to Know.

In Conclusion: New Jersey Rules on Funeral Directives

I hope that this article was helpful in explaining New Jersey Rules on Funeral Directives. Further, I included links to even more detailed information on my website so you can learn more. Therefore, please contact me and let me know how I did. Certainly, your comments and questions are welcome!

Let our Estate Planning lawyers help walk you through what can be a confusing process. To begin with, call to speak to one of our experienced estate planning lawyers.  By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!

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Peter KlenkPeter Klenk

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