§ 23-06-03 — Duty of final disposition - Final disposition of individuals who are indigent - Decedent's instructions

Decedent's instructions.
1. The duty of final disposition of the body of a deceased individual devolves upon the
following individual in the order of priority:
a. Any legally competent adult given the duty of final disposition by the deceased
individual in a statement conforming with section 23-06-31, except the legally
competent adult specified in the statement conforming with section 23-06-31 may
decline the duty of final disposition unless the individual would otherwise have the
duty of final disposition under this section;
b. The surviving spouse if:
(1) The deceased was married;
(2) The surviving spouse has not been arrested for, or pled guilty or nolo
contendere to, or has been found guilty of intentionally and feloniously killing
the deceased; and
(3) The surviving spouse has not admitted to or been charged with intentionally
and feloniously killing the deceased.
c. If the deceased was not married or was intentionally and feloniously killed by the
surviving spouse, or the surviving spouse was arrested for, admitted to, or was
charged with intentionally and feloniously killing the deceased, and left kindred,
upon the majority of the adult children of the decedent; however, in the absence
of actual knowledge to the contrary, a funeral director or mortician may rely on
instructions given by the child who represents to be the sole surviving child or the
children who represent to constitute a majority of the surviving children;
d. The surviving parent or parents of the decedent, each having equal authority;
e. The adult sibling or the majority of the adult siblings of the decedent; however, in
the absence of actual knowledge to the contrary, a funeral director or mortician
may rely on instructions given by the sibling who represents to be the sole
surviving sibling or the siblings who represent to constitute a majority of the
surviving siblings;
f. The adult grandchild or the majority of the adult grandchildren of the decedent;
however, in the absence of actual knowledge to the contrary, a funeral director or
mortician may rely on instructions given by a grandchild who represents to be the
only grandchild reasonably available to control final disposition of the decedent's
remains or the grandchildren who represent to constitute a majority of

grandchildren reasonably available to control final disposition of the decedent's
remains;
g. The grandparent or the grandparents of the decedent, each having equal
authority;
h. The adult nieces and nephews of the decedent or a majority of the adult nieces
and nephews; however, in the absence of actual knowledge to the contrary, a
funeral director or mortician may rely on instructions given by a niece or nephew,
who represents to be the only niece or nephew reasonably available to control
final disposition of the decedent's remains or the nieces and nephews who
represent to constitute a majority of the nieces and nephews reasonably available
to control final disposition of the decedent's remains;
i. An individual who was acting as the guardian of the decedent with authority to
make health care decisions for the decedent at the time of death;
j. An adult who exhibited special care and concern for the decedent;
k. An individual respectively in the next degree of kinship in the order named by law
to inherit the estate of the decedent; or
l. The appropriate public or court authority, as required by law. For purposes of this
subdivision, the appropriate public or court authority includes the human service
zone of the county in which the death occurred if the individual dies without
apparent financial means to provide for final disposition or the district court in the
county in which the death occurred. If the duty of final disposition devolves to this
level, the appropriate public or court authority may direct final disposition to a
mortician or funeral director after the coroner notifies the appropriate public or
court authority in writing that no individuals identified in subdivisions a through k
have accepted the duty of final disposition. A person identified under this
subdivision who exercises the duty of final disposition of the body of a deceased
individual is immune from civil liability for any act or omission arising out of the
duty of final disposition.
2. If there is only one individual in a degree of relationship to the decedent described in
subsection 1, and a district court determines the person and the decedent were
estranged at the time of death, the right to control and the duty of disposition devolves
to the next degree of relationship under subsection 1. For purposes of this subsection,
"estranged" means having a relationship characterized by mutual enmity, hostility, or
indifference.
3. If an individual to whom the right to control and duty of disposition devolves under
subsection 1, refuses to accept or declines to act upon the right or duty, that right and
duty passes as follows:
a. To another individual with the same degree of relationship to the decedent as the
individual refusing to accept or declining to act; or
b. To the individual in the next degree of relationship to the decedent under
subsection 1.
4. If a dispute exists regarding the right to control or duty of final disposition, the parties in
dispute or the mortician or funeral director may file a petition in the district court in the
county of residence of the decedent requesting the court make a determination in the
matter. If the right to control and duty of final disposition devolves to more than one
individual with the same degree of relationship to the decedent and those individuals
do not, by majority vote, make a decision regarding arrangements and final disposition
and a district court has been petitioned to make a determination, the court shall
consider the following factors in making a determination:
a. The reasonableness, practicality, and resources available for payment of the
proposed arrangements and final disposition;
b. The degree of the personal relationship between the decedent and each of the
individuals in the same degree of relationship to the decedent;
c. The expressed wishes and directions of the decedent and the extent to which the
decedent provided resources for the purpose of carrying out the wishes or
directions; and

d. The degree to which the arrangements and final disposition will allow for
participation by all who wish to pay respect to the decedent.
5. If the individual who has the duty of final disposition does not arrange for final
disposition of the body within the time required by this chapter, the individual next
specified shall arrange for final disposition of the body within the requirements of this
chapter.
6. a. If the deceased did not leave sufficient means to pay for expenses of final
disposition, and is not survived by an individual described by subsection 1 and
identified for financial responsibility within the human service zone's general
assistance policy, within seven days of application for services the human service
zone of the county in which the deceased had residence for general assistance
purposes or, if residence cannot be established, within seven days of application
for assistance the human service zone of the county in which the death occurs
shall employ a person to arrange for and supervise the final disposition. If the
deceased was a resident or inmate of a public institution, within seven days of
application for assistance the human service zone in which the deceased was a
resident for general assistance purposes immediately before entering the
institution shall employ a person to arrange for and supervise the final disposition.
b. The reimbursement for expenses of final disposition under this subsection is
three thousand five hundred dollars.
c. The department of health and human services may provide for the use of a
military urn, if the deceased was a veteran as defined in section 37-01-40, unless
the additional cost exceeds the reimbursement rate under this subsection or a
surviving spouse or the nearest of kin of the deceased elects a nonmilitary urn.
d. The human service zone shall pay the charge for final disposition of an individual
who is indigent as provided under this section. The human service zone shall
create a process to review and accommodate a request for burial due to religious
beliefs. If the deceased is eligible for indigent final disposition, the human service
zone may not decrease the human service zone payment due to a nominal
amount left by the deceased or contributed by a spouse, parent, adult children, or
any other party to defray the expenses of final disposition. Funds adequate to
allow for burial instead of cremation are considered nominal under this section.
e. Except for burial conducted under subdivision d, final disposition must be
conducted by cremation.
f. The department of health and human services and human service zones shall
maintain a standardized eligibility policy and application form to be used for the
purposes of indigent final disposition application.
7. If the individual with the duty of final disposition under this section, or the personal
representative of the decedent's estate, if any, is aware of the decedent's instructions
regarding the disposition of the remains, that person shall honor those instructions, to
the extent reasonable and possible, to the extent the instructions do not impose an
economic or emotional hardship. A decedent's instructions may be reflected in a
variety of methods, including pre-need funeral arrangements a deceased articulated
and funded in a pre-need funeral service contract, a health care directive, a durable
power of attorney for health care, a power of attorney, a will, a document created
under section 23-06-31, or a document of gift for an anatomical gift.
8. If the decedent died while serving in any branch of the United States armed forces, the
United States reserve forces, or the national guard, as provided by 10 U.S.C. 1481
section (a)(1) through (8) as effective through December 2001, and completed a
United States department of defense record of emergency data, DD form 93, or its
successor form or its equivalent branch's form, the duty to bury or cremate the
decedent or to provide other funeral and disposition arrangements for the decedent
devolves on the person authorized by the decedent pursuant to that form.
9. A funeral director or mortician has complete authority to control the final disposition
and to proceed under this chapter to recover reasonable charges for the final
disposition if:

a. The funeral director or mortician has actual knowledge none of the individuals
described in subsection 1 exist, can be found after reasonable inquiry, or can be
contacted by reasonable means; and
b. Within thirty-six hours after having been given written notice of the facts, the
appropriate court or public authority fails to assume responsibility for disposition
of the remains. Written notice may be delivered by hand, United States mail, or
facsimile transmission.