New York State Public Health Law Section 4201 regulates the responsibility for disposition of a person’s remains.
1. Persons Having Right to Control Disposition of Remains. The following persons in descending priority have the right to control the disposition of the remains of a decedent:
(i) the person designated in a written instrument* executed pursuant to the provisions of Section 4201 of the Public Health Law;
(ii) the decedent’s surviving spouse;
(ii-a) the decedent’s surviving domestic partner**;
(iii) any of the decedent’s surviving children eighteen years of age or older;
(iv) either of the decedent’s surviving parents;
(v) any of the decedent’s surviving siblings eighteen years of age or older;
(vi) a court appointed guardian;
(vii) any person eighteen years of age or older who would be entitled to share in the estate of the decedent as specified in section 4-1.1 of the estates, powers and trusts law, with the person closest in relationship having the highest priority;
(viii) a duly appointed fiduciary of the estate of the decedent;
(ix) a close friend or relative who is reasonably familiar with the decedent’s wishes, including the decedent’s religious or moral beliefs, when no one higher on this list is reasonably available, willing, or competent to act, provided that such person has executed a written statement pursuant to subdivision seven of this section; or
(x) a chief fiscal officer of a county or a public administrator appointed pursuant to article twelve or thirteen of the surrogate’s court procedure act, or any other person acting on behalf of the decedent, provided that such person has executed a written statement pursuant to subdivision seven of this section.
2. Unavailability of Designated Person. If a person designated to control the disposition of a decedent’s remains is not reasonably available, or is unwilling or not competent to serve, and such person is not expected to become reasonably available, willing or competent, then those persons of equal priority and, if there be none, those persons of the next succeeding priority shall have the right to control the disposition of the decedent’s remains.
3. Duties of Person in Control of Disposition. The person in control of disposition must faithfully carry out the directions of the decedent to the extent lawful and practicable, including consideration of the financial capacity of the decedent’s estate and other resources made available for disposition of the remains. The person in control of disposition must also dispose of the decedent in a manner appropriate to the moral and individual beliefs and wishes of the decedent provided that such beliefs and wishes do not conflict with the directions of the decedent. The person in control of disposition may seek to recover any costs related to the disposition from the fiduciary of the decedent’s estate.
4. Revocation. A written instrument executed under this section shall be revoked upon the execution by the decedent of a subsequent written instrument, or by any other subsequent act by the decedent evidencing a specific intent to revoke the prior written instrument and directions on disposition and agent designations in a will made pursuant to subdivision three of this section shall be superseded by a subsequently executed will or written instrument made pursuant to this section, or by any other subsequent act of the decedent evidencing a specific intent to supersede the direction or designation. The designation of the decedent’s spouse or domestic partner as an agent in control of disposition of remains shall be revoked upon the divorce or legal separation of the decedent and spouse, or termination of the domestic partnership, unless the decedent specified in writing otherwise.
* The written instrument may be in substantially the following form, and must be signed and dated by the decedent and the agent and properly witnessed:
APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS
I, _____________________________________________________________________(Your name and address)
being of sound mind, willfully and voluntarily make known my desire that, upon my death, the disposition of my remains shall be controlled by
__________________________________________________________________________.(name of agent)
With respect to that subject only, I hereby appoint such person as my agent with respect to the disposition of my remains.
Set forth below are any special directions limiting the power granted to my agent as well as any instructions or wishes desired to be followed in the disposition of my remains:
Indicate below if you have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law for funeral merchandise or service in advance of need:
☐ No, I have not entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law.
☐ Yes, I have entered into a pre-funded pre-need agreement subject to section four hundred fifty-three of the general business law.
(Name of funeral firm with which you entered into a pre-funded pre-need funeral agreement to provide merchandise and/or services)
Name: __________________________________________________________________Address: _______________________________________________________________Telephone Number: ______________________________________________________SUCCESSORS:
If my agent dies, resigns, or is unable to act, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent to control the disposition of my remains as authorized by this document:
1. First Successor Name: _______________________________________________
Telephone Number: ______________________________________________________
2. Second Successor Name: ______________________________________________
PRIOR APPOINTMENT REVOKED:
I hereby revoke any prior appointment of any person to control the disposition of my remains.
Signed this____________________ day of __________, ____________.
________________________________________________________________________(Signature of person making the appointment)
Statement by witness (must be 18 or older)
I declare that the person who executed this document is personally known to me and appears to be of sound mind and acting of his or her free will. He or she signed (or asked another to sign for him or her) this document in my presence.
ACCEPTANCE AND ASSUMPTION BY AGENT:
1. I have no reason to believe there has been a revocation of this appointment to control disposition of remains.
2. I hereby accept this appointment.
Signed this ______________ day of _______________, ______________.
(Signature of agent)
** “Domestic partner” means a person who, with respect to another person:
(i) is formally a party in a domestic partnership or similar relationship with the other person, entered into pursuant to the laws of the United States or any state, local or foreign jurisdiction, or registered as the domestic partner of the person with any registry maintained by the employer of either party or any state, municipality, or foreign jurisdiction; or
(ii) is formally recognized as a beneficiary or covered person under the other person’s employment benefits or health insurance; or
(iii) is dependent or mutually interdependent on the other person for support, as evidenced by the totality of the circumstances indicating a mutual intent to be domestic partners including but not limited to: common ownership or joint leasing of real or personal property; common householding, shared income or shared expenses; children in common; signs of intent to marry or become domestic partners under subparagraph (i) or (ii) of this paragraph; or the length of the personal relationship of the persons.
Each party to a domestic partnership shall be considered to be the domestic partner of the other party. “Domestic partner” shall not include a person who is related to the other person by blood in a manner that would bar marriage to the other person in New York State. “Domestic partner” shall also not include any person who is less than eighteen years of age or who is the adopted child of the other person or who is related by blood in a manner that would bar marriage in New York State to a person who is the lawful spouse of the other person.