Sidenote: The Operating Thetan of body custody

Sidenote is a collection of real-life events that I have personally experienced or received as second-hand accounts from colleagues. They address different scenarios that are relevant to the blog and explore various points of funeral law. Think of them as the answers to short essay exam questions.

Naturally, any identifying information has been removed.

About a month ago, a colleague approached me to ask a hypothetical, you know, “for a friend.” His friend had recently received news that one of his old cop buddies (let’s just call him Buddy) had been found dead in his apartment. Buddy was now at the medical examiner’s office. The deceased had a long estranged-wife, who no one had seen in decades, and one surviving nephew, who wanted nothing to do with Buddy. My colleague’s friend and some other acquaintances wanted to take over the services for Buddy. How do they do it?

It’s simpler than you’d think, at least in New York City, anyways.

For reference, here is what the hierarchy for custody typically looks like Spouse/Domestic Partner; any children 18+; deceased’s parents; any siblings 18+; authorized guardian; any relative 18+ (grandchildren, cousins, nieces/nephews, etc., including step and half relatives); fiduciary (legally appointed trustee). Then, last but not least, a close friend who is familiar with the deceased’s wishes may qualify as next of kin if no one on the above list is available or able. 

So, back to the story, at the arrangements meeting with the funeral home, the friend will fill out a form asserting that they have the legal right to control the disposition of Buddy’s remains, known as the “At-Need Written Statement of Person Having the Right to Control Disposition” or an “Affidavit or Authorization to Control Disposition.”

In this case, since living relatives are known, the funeral director will likely draft an additional affidavit for Buddy’s nephew and estranged spouse to sign stating that they’re forgoing their rights as Buddy’s next of kin in favor of Buddy’s friend. These affidavits will be notarized and kept on file in the event that proof of custody is required, which almost never happens.

Now, the pair of affidavit transferring custody is not a deal breaker. It’s just that we live in a litigious society that demonizes the death-care industry, so covering your whole ass is better than some. Amirite?

The general rule of thumb is that you only need this secondary affidavit – or proof of due diligence – if a legal living relative, higher than you in the Operating Thetan of body custody, is known and locatable. However, sometimes family members prematurely disappear, thinking that they’ve been absolved of responsibility, like Buddy’s estranged spouse, only to reappear once services are complete. So, to protect themselves AND you, the funeral home will do the bare minimum to locate the missing spouse, if they’re able to get any info on where she’s at. 

I followed up with my colleague just before posting this Sidenote to see how it all worked out. The nephew was happy to sign the affidavit, they actually did find the estranged spouse (in an upstate cemetery, because she was also dead), Buddy was successfully cremated, and his ashes were scattered illegally by his cop friends out of their squad cars speeding down an unnamed stretch of highway that was also Buddy’s old beat.

Straight people. ‘Wild Hogs’ much?

Aaaand that’s how you do it! If you’re interested in learning more about how your state decides who will take control of your remains, click on to read the Funeral Consumers Alliance’s state-by-state directory.




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