(1)Except as otherwise provided by section 23-1824 , a person who is eighteen
years of age or older and of sound mind, by testamentary disposition, by entering
into a pre-need sale as defined by section 12-1102 , or by affidavit as provided
in subdivision (2)(a)(ii) of this section, may direct the location, manner,
and conditions of disposition of his or her remains and the arrangements for
funeral goods and services to be provided upon his or her death.
(2)Except
as set forth in subsection (3) of this section or in section 71-20,121 , the
right of disposition, including the right to control the disposition of the
remains of a deceased person, the location, manner, and conditions of disposition,
and the arrangements for funeral goods and services to be provided, vests
in the following
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(1)
Except as otherwise provided by section 23-1824 , a person who is eighteen
years of age or older and of sound mind, by testamentary disposition, by entering
into a pre-need sale as defined by section 12-1102 , or by affidavit as provided
in subdivision (2)(a)(ii) of this section, may direct the location, manner,
and conditions of disposition of his or her remains and the arrangements for
funeral goods and services to be provided upon his or her death.
(2) Except
as set forth in subsection (3) of this section or in section 71-20,121 , the
right of disposition, including the right to control the disposition of the
remains of a deceased person, the location, manner, and conditions of disposition,
and the arrangements for funeral goods and services to be provided, vests
in the following order if the person listed is eighteen years of age or older
and is of sound mind:
(a)(i) A person designated by the decedent as the person with the
right of disposition in an affidavit executed in accordance with subdivision
(2)(a)(ii) of this section.
(ii) A person who is eighteen years of age
or older and of sound mind wishing to convey the right of disposition to another
person may execute an affidavit before a notary public in substantially the
following form:
State of .......... )
County of .......... )
I, ..............,
do hereby designate .............. with the right to control the disposition
of my remains upon my death. I (...... have) (...... have not) attached specific
directions concerning the disposition of my remains which the designee shall
substantially comply with, so long as such directions are lawful and there
are sufficient resources in my estate to carry out the directions. This affidavit
does not constitute a durable power of attorney for health care.
.........................
(signature of person executing affidavit)
Subscribed and sworn to before me this ......
day of the month of ............ of the year ...... .
.........................
(signature of notary public);
(b) The surviving spouse of the decedent;
(c) The sole
surviving child of the decedent or, if there is more than one child of the
decedent, the majority of the surviving children, except that less than a
majority of the surviving children shall be vested with the right of disposition
if they have used reasonable efforts to notify all other surviving children
of their instructions regarding the right of disposition and are not aware
of any opposition to those instructions on the part of a majority of the surviving
children;
(d) The surviving parent or parents of the decedent. If one of the
surviving parents is absent, the remaining parent shall be vested with the
right of disposition after reasonable efforts have been unsuccessful in locating
the absent surviving parent;
(e) The surviving brother or sister of the
decedent or, if there is more than one sibling of the decedent, the majority
of the surviving siblings, except that less than the majority of the surviving
siblings shall be vested with the right of disposition if they have used reasonable
efforts to notify all other surviving siblings of their instructions regarding
the right of disposition and are not aware of any opposition to those instructions
on the part of a majority of the surviving siblings;
(f) The surviving grandparent
of the decedent or, if there is more than one surviving grandparent, the majority
of the grandparents, except that less than the majority of the surviving grandparents
shall be vested with the right of disposition if they have used reasonable
efforts to notify all other surviving grandparents of their instructions regarding
the right of disposition and are not aware of any opposition to those instructions
on the part of a majority of the surviving grandparents;
(g) The person
in the next degree of kinship, in descending order, under the laws of descent
and distribution, to inherit the estate of the decedent. If there is more
than one person of the same degree, any person of that degree may exercise
the right of disposition;
(h) The guardian of the person of the decedent at the time of the
decedent's death, if one had been appointed;
(i) The personal representative
of the estate of the decedent. The powers and duties under this section of
the personal representative shall commence upon his or her appointment. Such
powers and duties of the personal representative shall relate back in time
to give acts by the personal representative which are beneficial to the disposition
of the decedent's remains occurring prior to appointment the same effect as
those occurring thereafter. Prior to appointment, the personal representative
may carry out written instructions of the decedent relating to his or her
body, funeral, and burial arrangements. The personal representative may also
ratify and accept acts regarding disposition of the decedent's remains done
by others where the acts would have been proper for the personal representative;
(j) The State
Anatomical Board or the county board of the county where the death occurred
in the case of an indigent person or any other person the disposition of whose
remains is a responsibility of the state or county;
(k) A representative as
described in section 38-1426 or 38-1427 that has arranged with the funeral
establishment, cemetery, or crematory authority to cremate or bury a body
part in the case of body parts received from the entity described in section 38-1426 or 38-1427 ; and
(l) In the absence of any person listed in subdivisions (2)(a) through
(k) of this section, any other person willing to assume the right of disposition,
including the funeral director with custody of the body, after attesting,
in writing, that a good faith effort has been made to no avail to contact
the persons listed in subdivisions (2)(a) through (k) of this section.
(3) A person
entitled under this section to the right of disposition shall forfeit that
right and the right is passed on to the next qualifying person as listed in
subdivisions (2)(a) through (l) of this section in the following circumstances:
(a) Any person
charged with first or second degree murder or voluntary manslaughter in connection
with the decedent's death and whose charges are known to the funeral director.
If the charges against such person are dismissed, or if such person is acquitted
of the charges, the right of disposition is returned to such person;
(b) Any person
who does not exercise his or her right of disposition within three days after
notification of the death of the decedent or within four days after the decedent's
death, whichever is earlier;
(c) If the person and the decedent are spouses
and a petition to dissolve the marriage was pending at the time of the decedent's
death; or
(d) If a county court pursuant to subsection (4) of this section
determines that the person entitled to the right of disposition and the decedent
were estranged at the time of death. For purposes of this subdivision, estranged
means a physical and emotional separation from the decedent at the time of
death which has existed for a period of time that clearly demonstrates an
absence of due affection, trust, and regard for the decedent.
(4)(a) If two
or more persons with the same relationship to the decedent hold the right
of disposition and cannot by majority vote make a decision regarding the disposition
of the decedent's remains, any of such persons or a funeral home with custody
of the remains may file a petition asking the court to make a determination
in the matter.
(b) Notwithstanding subsections (1) through (3) of this section,
the county court of the county where the decedent died may award the right
of disposition to the person determined by the court to be the most fit and
appropriate to carry out the right of disposition and may make decisions regarding
the decedent's remains if those sharing the right of disposition cannot agree.
(c) In making
a determination under this subsection, the court shall consider the following:
(i) The reasonableness
and practicality of the proposed funeral arrangements and disposition;
(ii) The degree
of the personal relationship between the decedent and each of the persons
claiming the right of disposition;
(iii) The desires of the person or persons
who are ready, able, and willing to pay the cost of the funeral arrangements
and disposition; and
(iv) The convenience and needs of other families and friends wishing
to pay respects.
(d) In the event of a dispute regarding the right of disposition,
a funeral establishment, cemetery, or crematory authority is not liable for
refusing to accept the remains or to inter or otherwise dispose of the remains
of the decedent or complete the arrangements for the final disposition of
the remains until the funeral establishment, cemetery, or crematory authority
receives a court order or other written agreement signed by the parties in
disagreement that decides the final disposition of the remains. If the funeral
establishment, cemetery, or crematory authority retains the remains for final
disposition while the parties are in disagreement, the funeral establishment
may embalm or refrigerate and shelter the body, or both, in order to preserve
it while awaiting the final decision of the court and may add the cost of
embalming or refrigeration and sheltering to the final disposition costs.
If a funeral home brings an action under this subsection, the funeral establishment,
cemetery, or crematory authority may add the legal fees and court costs associated
with a petition under this subsection to the cost of final disposition. This
subsection may not be construed to require or to impose a duty upon a funeral
establishment, cemetery, or crematory authority to bring an action under this
subsection.
(e) Except to the degree it may be considered by the court under
subdivision (4)(c)(iii) of this section, the fact that a person has paid or
agreed to pay for all or part of the funeral arrangements and final disposition
does not give that person a greater claim to the right of disposition than
the person would otherwise have. The personal representative of the estate
of the decedent does not, by virtue of being the personal representative,
have a greater claim to the right of disposition than the personal representative
would otherwise have.