§ 23-14-31-26 — Priority among persons having right to serve as authorizing agent; persons who may not serve; disputes

(a) Except as provided in subsection (c),
the following persons, in the priority listed, have the right to serve as
an authorizing agent:
(1) A person:
(A) granted the authority to serve in a funeral planning
declaration executed by the decedent under IC 29-2-19; or
(B) named in a United States Department of Defense form
"Record of Emergency Data" (DD Form 93) or a successor form
adopted by the United States Department of Defense, if the
decedent died while serving in any branch of the United States
Armed Forces (as defined in 10 U.S.C. 1481) and completed
the form.
(2) An individual specifically granted the authority to serve in a
power of attorney or a health care power of attorney executed by
the decedent under IC 30-5-5-16 or a health care representative
under IC 16-36-7.
(3) The individual who was the spouse of the decedent at the time
of the decedent's death, except when:
(A) a petition to dissolve the marriage or for legal separation of
the decedent and spouse is pending with a court at the time of
the decedent's death, unless a court finds that the decedent and
spouse were reconciled before the decedent's death; or
(B) a court determines the decedent and spouse were physically
and emotionally separated at the time of death and the
separation was for an extended time that clearly demonstrates
an absence of due affection, trust, and regard for the decedent.
(4) The decedent's surviving adult child or, if more than one (1)
adult child is surviving, the majority of the adult children.
However, less than half of the surviving adult children have the
rights under this subdivision if the adult children have used
reasonable efforts to notify the other surviving adult children of
their intentions and are not aware of any opposition to the final
disposition instructions by more than half of the surviving adult
children.
(5) The decedent's surviving parent or parents. If one (1) of the
parents is absent, the parent who is present has authority under
this subdivision if the parent who is present has used reasonable
efforts to notify the absent parent.
(6) The decedent's surviving sibling or, if more than one (1)
sibling is surviving, the majority of the surviving siblings.
However, less than half of the surviving siblings have the rights
under this subdivision if the siblings have used reasonable efforts
to notify the other surviving siblings of their intentions and are
not aware of any opposition to the final disposition instructions by
more than half of the surviving siblings.
(7) A guardian appointed by a court under IC 29-3-5-3.
(8) The individual in the next degree of kinship under IC 29-1-2-1
to inherit the estate of the decedent or, if more than one (1)
individual of the same degree is surviving, the majority of those
who are of the same degree. However, less than half of the
individuals who are of the same degree of kinship have the rights
under this subdivision if they have used reasonable efforts to
notify the other individuals who are of the same degree of kinship
of their intentions and are not aware of any opposition to the final
disposition instructions by more than half of the individuals who
are of the same degree of kinship.
(9) If none of the persons described in subdivisions (1) through
(8) are available, or willing, to act and arrange for the final
disposition of the decedent's remains, a stepchild (as defined in IC 6-4.1-1-3(f)) of the decedent. If more than one (1) stepchild
survives the decedent, then a majority of the surviving
stepchildren. However, less than half of the surviving stepchildren
have the rights under this subdivision if they have used reasonable
efforts to notify the other stepchildren of their intentions and are
not aware of any opposition to the final disposition instructions by
more than half of the stepchildren.
(10) The person appointed to administer the decedent's estate
under IC 29-1.
(11) If none of the persons described in subdivisions (1) through
(10) are available, any other person willing to act and arrange for
the final disposition of the decedent's remains, including a funeral
home that:
(A) has a valid prepaid funeral plan executed under IC 30-2-13
that makes arrangements for the disposition of the decedent's
remains; and
(B) attests in writing that a good faith effort has been made to
contact any living individuals described in subdivisions (1)
through (10).
(12) In the case of an indigent or other individual whose final
disposition is the responsibility of the state or township, the
following may serve as the authorizing agent:
(A) If none of the persons identified in subdivisions (1) through
(11) are available:
(i) a public administrator, including a responsible township
trustee or the trustee's designee; or
(ii) the coroner.
(B) A state appointed guardian.
However, an indigent decedent may not be cremated if a
surviving family member objects to the cremation or if cremation
would be contrary to the religious practices of the deceased
individual as expressed by the individual or the individual's
family.
(13) In the absence of any person under subdivisions (1) through
(12), any person willing to assume the responsibility as the
authorizing agent, as specified in this article.
(b) When a body part of a nondeceased individual is to be cremated,
a representative of the institution that has arranged with the crematory
authority to cremate the body part may serve as the authorizing agent.
(c) If:
(1) the death of the decedent appears to have been the result of:
(A) murder (IC 35-42-1-1);
(B) voluntary manslaughter (IC 35-42-1-3); or
(C) another criminal act, if the death does not result from the
operation of a vehicle; and
(2) the coroner, in consultation with the law enforcement agency
investigating the death of the decedent, determines that there is a
reasonable suspicion that a person described in subsection (a)
committed the offense;
the person referred to in subdivision (2) may not serve as the
authorizing agent.
(d) The coroner, in consultation with the law enforcement agency
investigating the death of the decedent, shall inform the crematory
authority of the determination referred to in subsection (c)(2).
(e) If a person vested with a right under subsection (a) does not
exercise that right not later than seventy-two (72) hours after the person
receives notification of the death of the decedent, the person forfeits the
person's right to determine the final disposition of the decedent's
remains, and the right to determine final disposition passes to the next
person described in subsection (a).
(f) A crematory authority owner has the right to rely, in good faith,
on the representations of a person listed in subsection (a) that any other
individuals of the same degree of kinship have been notified of the
final disposition instructions.
(g) If there is a dispute concerning the disposition of a decedent's
remains, a crematory authority is not liable for refusing to accept the
remains of the decedent until the crematory authority receives:
(1) a court order; or
(2) a written agreement signed by the disputing parties;
that determines the final disposition of the decedent's remains. If a
crematory authority agrees to shelter the remains of the decedent while
the parties are in dispute, the crematory authority may collect any
applicable fees for storing the remains, including legal fees that are
incurred.
(h) Any cause of action filed under this section must be filed in the
probate court in the county where the decedent resided, unless the
decedent was not a resident of Indiana.
(i) A spouse seeking a judicial determination under subsection
(a)(3)(A) that the decedent and spouse were reconciled before the
decedent's death may petition the court having jurisdiction over the
dissolution or separation proceeding to make this determination by
filing the petition under the same cause number as the dissolution or
separation proceeding. A spouse who files a petition under this
subsection is not required to pay a filing fee.

Legislative History

As added by P.L.231-1995, SEC.2. Amended by P.L.102-2007, SEC.1; P.L.143-2009, SEC.5; P.L.101-2010, SEC.1; P.L.34-2011, SEC.1; P.L.6-2012, SEC.161; P.L.190-2016, SEC.32; P.L.26-2021, SEC.1; P.L.50-2021, SEC.65; P.L.137-2021, SEC.28.