Bill S.1053

SENATE DOCKET, NO. 2048 FILED ON: 2/19/2021

SENATE . . . . . . . . . . . . . . No. 1053

By Mr. Hinds, a petition (accompanied by bill, Senate, No. 1053) of Adam G. Hinds for legislation to establish the right of disposition. The Judiciary.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 951 OF 2019-2020.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act establishing the right of disposition.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Title XVI of the General Laws is hereby amended by inserting after section 114 the following Chapter:-

Chapter 114A: Right of Disposition

Section 1. For purposes of this chapter the following words shall, unless the context clearly indicates otherwise, have the following meanings:-

“Buyer”, the person entering into a Pre-Need Funeral Contract with a Licensed Funeral Establishment.

“Estranged”, a physical or emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust and regard for the decedent.

“Funeral Goods and/or Services”, those goods and services which are customarily provided in the business of embalming and funeral directing, as commonly practiced, as determined by the Department of Public Health.

“Licensed Funeral Establishment”, a fixed place or establishment privately owned or maintained by a person, partnership, corporation, association, or other organization which has been duly registered by the Board pursuant to Section 83 of Chapter 112 and which is located, constructed, equipped and operated for the purpose of providing sanitary handling, preparation, disposition and care of dead human bodies.

“Pre-need funeral contract”, any written agreement between a Buyer and a Licensed Funeral Establishment in which the Licensed Funeral Establishment agrees, prior to the death of an unnamed Beneficiary to furnish Funeral Goods and/or Services for that named Beneficiary upon their death and the Buyer, pursuant to that agreement, tenders funds made payable to a banking institution or insurance company to the Licensed Funeral Establishment for the purpose of paying all or part of the cost of those Funeral Goods and/or Services at the time they are actually provided.

Section 2. A person by entering into a Pre-Need Funeral Service Contract or by providing instructions in a written and sworn affidavit as defined in Section 4, may direct the location, manner and conditions of disposition of the person’s remains, and the arrangements for funeral goods and/or services to be provided upon the person’s death. The instructions that are contained in a Pre-Need Funeral Services Contract shall not be subject to cancellation or substantial revision unless the cancellation or substantial revision has been ordered by a person who the decedent has appointed in the Pre-Need Funeral Services Contract as the person authorized to cancel or revise the terms of the Pre-Need Funeral Services Contract, or unless any resources set aside to fund the Pre-Need Funeral Services Contract are insufficient under the terms of the Pre-Need Funeral Services Contract to carry out the instructions contained therein.

Section 3. Except as set forth in Section 5, the right to control the disposition of the remains of a deceased person, the location, manner and conditions of disposition, and arrangements for funeral goods and services to be provided vests in the following in the order named, provided such person is 18 years or older:

(a)(1) A Person designated by the decent as the person with the right to control the disposition in an affidavit executed in accordance with Section 4; or (2) a person designated in the Federal Record of Emergency Data Form DD3, or its successor form, to have the right of disposition by a member of the military who dies while under active duty orders as described in 10 U.S.C § 1481

(b) The surviving spouse

(c)(1) The sole surviving child of the decedent; or (2) the majority of the surviving children; or (3) less than one-half of the surviving children if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving children

(d)(1) The surviving parents of the decedent; or (2) one of the surviving parents if all other reasonable efforts have been unsuccessful in locating the absent surviving parent

(e)(1) The surviving sibling of the decedent; or (2) the majority of the surviving siblings; or (3) less than one-half of the surviving siblings if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving siblings

(f)(1) The surviving grandparent of the decedent; or (2) the majority of the surviving grandparents; or (3) less than one-half of the surviving grandparents if they have used reasonable efforts to notify all other surviving grandparents of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving grandparents

(g) The guardian of the decedent at the time of the decedent’s death, if one had been appointed

(h) The personal representative of the estate of the decedent

(i) The decedent’s next of kin in equal degree; but if there are 2 or more descendants of deceased ancestors in equal degree claiming through different ancestors, those claiming through the nearest ancestor shall be preferred to those claiming through an ancestor more remote. Degrees of kindred shall be computed according to the rules of civil law.

(j) If the disposition of the remains of the decedent is the responsibility of the state or a political subdivision of the state, the public officer, administrator or employee responsible for arranging the final disposition of the decedent’s remains

(k) In the absence of any person under subsections (a) through (j) of this section, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the funeral director with custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under subsections (a) through (j) of this section

Section 4. A person who is 18 years of age or older wishing to authorize another person to control the disposition of his or her remains may execute an affidavit before a notary public containing the following information:

(1) The name and date of birth of the person releasing control of his or her remains

(2) The name, address, and telephone number of the person being authorized to assume control of the remains

(3) An affirmation by the authorized party that they are willing to carry forth the request

Section 5. A person entitled under law to the right of disposition shall forfeit that right, which shall be passed on to the next qualifying party pursuant to Section 3 in the following circumstances:

(a) Should they be charged with first or second degree murder or voluntary manslaughter in connection with the decedent’s death, and where their charges are known to the funeral director; provided, that if the charges against such person are dismissed, or if such person is acquitted of the charges, the right of disposition shall be returned to the party

(b) Should they not execute their right of disposition within the earlier of (1) two days of notification of the death of decedent; or (2) three days of the decedent’s death

(c) Should they be a legal spouse of the decedent who had a pending petition to dissolve the union at the time of the death

(d) Should the probate court pursuant to Section 6 determine that the person entitled to the right of disposition and the decedent were estranged at the time of death

Section 6. Notwithstanding Sections 1 through 5 of this Chapter, the probate court for the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition, and may make decisions regarding the decedent’s remains if those sharing the right of disposition cannot agree. The following provisions shall apply to the court’s determination under this section:

(a) If the party holding the right of disposition is comprised of two or more persons with the same relationship to the decedent and they cannot, by majority vote, make a decision regarding the disposition of the decedent’s remains, any of such persons or a funeral home with custody of the remains may file a petition asking the probate court to make a determination in the matter.

(b) In making a determination under this Section, the probate court shall consider the following:

(1) The reasonableness and practicality of the proposed funeral arrangements and disposition

(2) The degree of the personal relationship between the decedent and the party claiming the right of disposition

(3) The desires of the party ready, willing, and able to pay the cost of the funeral arrangements and disposition

(4) The desires of the decedent; and

(5) The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect

(c) In the event of a dispute regarding the right of disposition, a funeral home is not liable for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral home receives a court order or other written agreement signed by the parties in the disagreement that decides the final disposition of the remains. If the funeral home retains the remains for the final disposition while the parties are in disagreement, the funeral home may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the probate court and may add the cost of embalming and refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this section, the funeral home may add the legal fees and court costs associated with a petition under this section to the cost of final disposition. This section may not be construed to require or to impose a duty upon a funeral home to bring an action under this section. A funeral home and its employees may not be held criminally or civilly liable for choosing not to bring an action under this section.

(d) Except to the degree to which it may be considered by the probate court under subsection (b) of Section 5 of this Chapter, the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater right to the right of disposition than the person would otherwise have. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person would have otherwise.

Section 7. Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated, or otherwise disposed of, and the party’s authority to order such a disposition. A funeral home shall have the right to rely on such funeral service contract or authorization and shall have the authority to carry out the instructions of the person or persons whom the funeral home reasonable believes holds the right of disposition. The funeral home shall have no responsibility to contact or to independently investigate the existence of any next-of-kin or relative of the decedent. If there is more than one person in a class who are equal in priority and the funeral home has no knowledge of any objection by other members of such class, the funeral home shall be entitled to rely on and act according to the instructions of the first such person in the class to make funeral and disposition arrangements; provided that no other person in such class provides written notice of his or her objections to the funeral home.

Section 8. No funeral home or funeral director who relies in good faith upon the instructions of an individual claiming the right of disposition shall be subject to criminal or civil liability or subject to disciplinary action for carrying out the disposition of the remains in accordance with the instructions.

Name:	District/Address:
Adam G. Hinds	Berkshire, Hampshire, Franklin and Hampden