A practical issue that is often overlooked when preparing an estate plan is deciding who will be in charge of disposing of your remains. People sometimes assume that their personal representative, trustee, or trusted loved ones will automatically get to decide about this issue. This mistaken assumption can sometimes lead to costly and hurtful disputes among a decedent’s family members.
Under Oregon law, a person who is age 18 years of or older may sign a document directing how his or her body is to be disposed of at death. In the absence of a written direction, Oregon law provides a laundry list of family members who get to decide this issue. The decedent’s spouse tops the list, followed by children, then parents, and then siblings. If there is more than one member in a particular class, the member of the class who is first available after death gets to decide unless another member of the same class objects.
Oregon’s list of default decision-makers does not always match the wishes of a decedent. Sometimes, a decedent has a significant other, relative, or close friend that the decedent would prefer to make decisions around disposition of remains. Other times, the members of particular class of decisions-makers do not agree on what should be done with the remains. For example, the children may disagree about whether mom’s body should be cremated or buried in the local cemetery. Or, perhaps the children cannot agree on where to scatter grandma’s ashes. These sorts of issues can sometimes result in costly and hurtful family disputes.
It is easy to avoid these problems by signing a simple document wherein you name a person to make all decisions regarding the disposition of your remains. The document must be substantially similar to the form that appears in ORS 97.130 (7). Also, the signature on the document must be witnessed by two individuals. While naming someone to dispose of your body when you are gone is perhaps not the most glamorous or pleasant task, it can save your loved ones considerable expense and grief after you are gone.