Klenk Law

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!

Wills, Trusts, Probate, and Estate Litigation, It’s All We Do!

 

Tags:

Atlantic County, Burlington County, Camden County, Estate Planning, Estate Planning Attorney, Estate Planning Lawyer, Gloucester County, New Jersey

What Our clients are saying

Stars

Peter provided outstanding advice and preparation of a will and trusts.

Stars

Peter was excellent. He explained everything very clearly and is super friendly. My wife and I originally tried using a lawyer through group legal coverage, but unfortunately the old adage - "you get what you pay for" - applied to the other lawyer, and we decided to go with a real professional.

Stars

When it came down to picking the right attorney to handle my affairs, I knew right away it was this firm. From speaking to their secretary to speaking to Peter I knew I was making the right decision. After only a few mins Peter knew right away what I was looking for and handled all my questions professionally and even gave me great feedback that put my mind at ease. All that without even giving a single penny! So of course I hired him! So far so good...

Stars

AWESOME LAWYER! Peter Klenk is an exceptional attorney and a very nice person! Today I spoke with Peter about estate planning and was impressed with by his professionalism, cordiality, and attention to detail. I highly recommend Klenk Law for probates, wills, trusts, and other issues germane to estate planning!

Stars

Great friendly staff

Stars

Tremendous firm with bright, kind and tenacious people. Great representation for our family.

Stars

I'm totally satisfied with Klenk Law. Peter has a great legal mind with the personality of the guy next door.

Stars

Everything about my experience was a 10+! Peter and his staff made what I thought would be a difficult process easy and understandable. Every detail was handled correctly. No other firm could possibly do better than Klenk Law!

Stars

Peter and his staff are very responsive and always willing to help my clients and in a cost efficient manner.

Stars

Like another reviewer, I contacted Peter through his website using the free consultation link, for a question regarding PA inheritance taxes. The question was quite technical and difficult to explain, and the answer was nowhere to be found on the web. Peter grasped precisely what I was asking, and provided a clear, helpful response (with a touch of humor) the very next day.

Stars

Answered my question quickly and referred me to a colleague that could handle my problem

Stars

Mr. Klenk, quickly understood the circumstances presented and provided clear and concise advice. This advice provided me with the information I required to progress the case to my advantage.

Stars

Peter is excellent. I had a very complicated situation with my parents' estate planning and potential Medicaid needs. Peter was very knowledgeable in estate planning matters, able to define the best solution for the situation. Additionally, he was congenial and able to communicate effectively to my senior citizen parents the benefits of estate planning. He earned my trust, and more importantly, my parents' trust in a 45 mins consultation period. Highly recommend Peter. He is very easy to work with.

Stars

Peter recently gave a presentation about Wills & Trusts at my employer, and it was fantastic! He was extremely knowledgeable and provided valuable information to the group. People were very engaged and asked several questions, all of which Peter thoroughly answered. Personally, my husband and I have selected Peter to help us with our estate planning, and he has been very helpful in providing us with all of the information we need to provide a secure future for our family. Thank you, Peter!

Stars

Peter provided outstanding advice and preparation of a will and trusts.

Stars

Peter explained things in a way that was easy to understand. Everything was done in the time frame he said it. Could not have been better!

Stars

You & your staff are the best thank you for everything.

Stars

Peter and his staff handled all of our needs in a very professional and timely matter.

Stars

Peter Klenk made a complex subject understandable and allowed us to move forward with our estate planning. He was patient with our questions and creative in the solutions he proposed.

Stars

Peter explained a complex subject very clearly, helped us to decide the best approach to managing our estate and then made it very easy for us to execute the required documents. He will be a valuable resource for years to come and clearly has a great understanding of estate law that will lead to innovative solutions for us. I would unhesitatingly recommend him for estate planning.

Stars

Fantastic customer service. Very personable and most importantly they provide great explanations of what is required based on your individual needs. Highly recommend Klenk Law for anyone that needs to create a will and estate documents.

Stars

Always professional and very responsive. Everyone on the staff that I have worked with. I look forward to continuing our relationship.

Stars

Surprisingly easy

Stars

Affable...yet surprisingly cerebral estate planning atty. High marks all the way around.

Stars

Peter and his associates made things easy for us.

Let us put our expertise to work for you.

Free consultation within 24 hours.