Court Holds Decedent Has No Right to Choose How to Rest in Peace

The bedrock principle of all probate matters is that the decedent’s intent controls. In this case, the Iowa Supreme Court determined that the legislature expressly overturned this principle in regards to the disposition of a decedent’s remains and that the decedent’s wishes as expressed in her will could be disregarded.

The decedent and her husband moved from Iowa to Montana after they were married in the 1940s. They lived together in Montana for 43 years and raised 10 children during that time. The couple parted ways and the husband returned to Iowa, but the couple never divorced or formally separated. Three years before she died, the decedent purchased a burial plot in Montana and made arrangements for her final disposition pursuant to her desire to be buried in Montana.

Shortly thereafter, the decedent moved to New Mexico where one of her adult children was living. She executed a valid will in New Mexico. The will named the decedent’s sister as the executor and contained instructions for the decedent’s burial and funeral to be in Montana.  The will provision specified for a “moderately priced” wooden coffin, and denoted the grave number and lot in a specific section of a particular cemetery in Billings where the decedent was to be buried.  The decedent traveled to Iowa, but became ill and was unable to travel back to New Mexico. She spent six months at the home of her estranged husband in Iowa before she died in June 2012.

Before she died, the decedent reiterated her wishes to be buried in Montana. She drafted a letter in the presence of her son restating her desire to be buried in Montana. The letter was sent to all of her children and her sister. Her sister also spoke with a funeral director in Iowa about the decedent’s wishes. The funeral director did not advise the sister about Iowa Code chapter 144C (the Iowa Final Disposition Act) to ensure the sister could make final arrangements because the funeral director was not aware of the statute, which had been passed in 2008 and became effective for deaths after July 1, 2008.

Upon her death, the decedent’s sister asked the funeral director to transport the decedent to Montana to carry out her wishes. For unknown reasons, the decedent’s estranged husband demanded that the decedent be buried in Iowa rather than Montana. The husband argued that as the surviving spouse, he had the sole authority to direct the disposition of the decedent’s body under Iowa Code 144C and was not required to conform to the decedent’s directives in her will. The probate court was asked to resolve the dispute. There was no argument raised that either Montana or New Mexico law applied to the construction of the decedent’s will.

After an evidentiary hearing, the probate court determined that Iowa Code § 144C.5 was intended to apply only in situation in which a decision regarding the disposition of an individual had not been made. Because the decedent made express provisions in her will, the statute did not apply. The probate court ordered that the decedent be transported and buried in Montana according to her stated wishes. The husband appealed, and the Iowa Supreme Court agreed to hear the case.

The statute provides a hierarchy of decision-makers for the disposition of an individual’s remains. The probate court had determined that the statute left intact the common law right of a person to direct the final disposition of their remains and that the statute only applied when a person had failed to make this directive. The Iowa Supreme Court disagreed and held that the legislative intent was that the statute specifically pre-empted common law principles of a decedent’s intent.

The Act itself specifies the order in which persons are granted authority to control final disposition of a decedent’s remains. The Court agreed that the purpose of the statute was to provide clear-cut rules to avoid protracted family disputes when a decedent’s wishes are ambiguous or unknown by prescribing a designee or family member to make the burial decisions. The Court held that the statute’s priority order for designating a decision maker is required unless the decedent completes a statutorily-prescribed declaration designating a different individual. The Court also held that the statute’s language prohibits the decedent from including making directive for their final disposition under the terms of their will. Of course, reference to the separate declaration can be referenced in the will, and the declaration can reference its existence under the will. 

The court determined that a simple statement in a decedent’s will setting forth burial wishes was insufficient under Iowa law for deaths after July 1, 2008, because the legislature removed two statutes that gave the decedent control over their remains and allowed individuals to provide written instructions for their disposition and required that a surviving spouse or other designee faithfully carry out the instructions.  Based on the removal of these two provisions, the Court held that the legislature made clear its intention that the designee has sole authority to make all decisions regarding the decedent’s burial without consideration for the decedent’s wishes. The Court determined that this showed the legislature’s “deliberate policy choice to favor clarity and certainty over ability of persons to control the final disposition of their own bodies.”  To override the statutory order of persons controlling the disposition of the decedent’s body, the decedent must execute a written declaration in a form substantially complying with the statute.  The declaration must also be contained in or attached to decedent’s durable power of attorney for health care decisions.

As applied to the facts of the case, the Court rejected the decedent’s designation of her sister as executor and designee within her will because the will did not contain the statutory language and it was not contained in or attached to a health care durable power of attorney. Thus, the decedent’s estranged (but surviving) spouse held the right to control the decedent’s remains.

A dissent was filed that argued that the majority’s decision interprets Iowa Code chapter 144C to address matters that were not part of the problem sought to be fixed by the legislature. The dissent noted that the statute was created solely to resolve disputes when the decedent failed to make clear their wishes for burial, which was not the situation in this case The dissent also stated that the process in the statute should not have been interpreted to strip the decedent of the independent power to direct their own funeral arrangements and final disposition. The dissent stated, “Last wishes are sacrosanct, and every law and statute concerning last wishes has been constructed solidly upon this fundamental, common understanding.” In the absence of a clear directive to negate this fundamental principle, the statute did not negate the protection of a decedent’s last wishes to claim her final resting place in Montana.

The situation in this case creates a particularly harsh result because the decedent took steps to establish a plan and left specific instructions for her burial.  On multiple occasions the decedent unequivocally expressed these wishes with her family. But, because the Court held that the legislature overruled common law principles that a decedent’s intentions for their burial should be followed, the decedent’s wishes will be wholly ignored by her estranged spouse who has exclusive authority to decide where the decedent shall be laid to rest.

Following this case, any person who has specific wishes regarding their burial must carefully select a designee who will follow the decedent’s intentions.  The declaration of this alternative designee must be done by taking affirmative steps to add the language expressed in the statute to a form attached to or contained within a revised durable power of attorney for health care containing the declaration language, but a statement of the decedent’s wishes should apparently not be included.

Unless the legislature acts to change Iowa’s Final Disposition Act to ensure compliance with decedent’s wishes and allowing declaration of a designee within a will, harsh results like this will likely continue to arise. Hopefully, the decedent’s tragic legal circumstances will compel a change in the law so that the decedent can at least rest in some peace in Iowa knowing her case enabled others to have their final instructions respected as the law has always previously sought to do.In re Estate of Whalen, No. 12-1927, 2013 Iowa Sup. LEXIS 16 (Iowa Sup. Ct. Feb. 22, 2013).