Until 2005, Florida Law was relatively unclear with regards to burial arrangement details. As a response to this, the state has since attempted to clear up any issues by creating expansive and thorough legislation. The specifics of this law can be found in further detail in the Florida Statute 497.005, which comprehensively addresses all legal aspects of the burial process, amending Florida statutes Ch.470 and Ch. 497.
The statute’s purpose was in part to avoid legal issues with regards to the burial arrangements of an individual. Before this law came into play, when people had passed away and had neglected to record their burial wishes, there was often conflict as to what these may have been. Different parties would want different arrangements for the deceased: burial site, cremation, organ donation etc. The Anna Nicole Smith case (Arthur v. Milstein) is a famous example, with the burial not being undertaken until over a month after her death due to a dispute with family members over where she should be laid to rest. Such events drag out longer than they should and cause unnecessary pain to all those involved; as such the state of Florida passed the legislation to avoid such instances in the future.
This law now states that a “legally authorized person” will be in control of the deceased, and provides a list that details whom that person may be, and in which order:
- The deceased, who may have organized a burial plan or has left instruction in their will as to their wishes
- The surviving spouse, unless said spouse committed an act which resulted or contributed to the deceased death
- A son or daughter who is over the age of 18
- A parent
- A sibling over the age of 18
- A grandchild over the age of 18
- A grandparent
- Next of kin
If no family member is available, the term can also apply to the deceased’s guardian, attorney, personal representative, a friend not listed but who is willing to undertake the responsibility, health surrogate or other official (see the statute for further details). If an individual is part of the military, they can name a person in the Record of Emergency Data.
Even with the above, there can still be disputes in court regarding burial arrangements. Some have argued this statute goes against the Florida Probate Code, which treats spouses and children as equal parties when it comes to an intestate decedent (a person without a will). In this case, the court has the final decision as to who has responsibly. In other instances where parties are in dispute, the court has also taken the deceased oral statements into consideration with sufficient evidence, even if their will contradicts this, as the deceased should still have priority as far as is possible.