“Ask Your Attorney” Column

Ask Your Attorney

When I Die Who Legally Controls My Funeral?

Dear Counselor: I just had an awful experience connected to the death of my good friend. He had children of his first marriage, now adults, and they and his second wife got in a huge fight about what was to be done with his remains, his funeral, and even where he was going to be buried. It was terrible. Who legally has control over that when you die? How can I avoid what happened to my friend?

Dear Client: No one likes to think about their demise, and avoiding the topic is the “norm” I’ve found. But it is exactly this procrastination that will end up causing arguments among your loved ones at the time of your funeral and burial. You can avoid what happened to your friend, but in order to do so, yo need to put your wishes in writing, and discuss them with your family. The more detail the better, and you also need to spell out who is to be in charge of carrying out your wishes. In Wisconsin, the law will enforce your wishes if you complete an “Authorization for Final Disposition” and then sign it in the presence of two adult witnesses or a notary public. This allows you to make your own funeral arrangements, including the disposition of your body, religious observances, viewing, and type of service. You can obtain a form for this purpose, from the Department of Health Services, at no charge. The forms and instructions are available on the internet. If you do not do so, then the law has created a “pecking order” of people who would be legally authorized to determine the nature of your funeral and burial. Standing first in line would be your surviving spouse, then your children (majority controls), your parents, and so on. Obviously the best thing to do is make your own arrangements before you die, and put them in writing. You can keep your directives private, if you wish, to be disclosed at the time of your passing. If you need help, we can assist you to do that as part of your estate plan. In the end you will have done well for your family because there will be no issues to argue over — your representative will just carry out your own directions.

John L. Maier, Jr.
Marcus Weden

Sweet & Maier, S.C., Attorneys
114 N. Church St.
Elkhorn, WI 53121