Contributed by: Melissa O’Rourke, ISU Extension Farm & Agribusiness Management Specialist, email@example.com 712-737-4230
Estate of Mary Florence Whalen: Can a surviving spouse over-ride the written wishes of his deceased wife for funeral and burial plans?
Iowa State University Extension and Outreach provides educational programming related to estate planning – and the subject of substitute decision-making and end-of-life planning frequently arises. For this reason, a recent decision of the Iowa Supreme Court is worth review.
In 2008, the Iowa Legislature passed into law the Iowa Final Disposition Act which can be found in Chapter 144C of the Iowa Code. The legislature’s enactment of this law followed some earlier court cases where survivors were fighting about where and how their deceased relative would be buried. The Iowa Final Disposition Act is a comprehensive set of rules that outlines who can make these decisions. This is the law that the Iowa Supreme Court applied in the recent case of the Estate of Mary Florence (“Flo”) Whalen.
Flo and her husband Michael Whalen were native Iowans, but they moved to Billings, Montana in 1953 where they raised ten children. In 1996, Michael moved back to Anamosa, Iowa and Flo remained in Billings until 2004 when she moved to New Mexico to live near an adult daughter. Flo and Michael never legally separated or divorced. In December 2011, Flo traveled to Iowa for a visit, and became so ill that she could not travel. Flo moved in with Michael and stayed there until her death on June 9, 2012.
Flo had devoted significant thought and planning related to the end of her life and where she wished to be buried. While living in New Mexico, Flo executed a 2009 will that included a specific provision directing her burial in a cemetery in Billings where she had purchased a lot. Two months before her death, Flo wrote a detailed letter that was sent to all ten of her children, her sister, and to her husband Michael, again specifically outlining Flo’s desires for a funeral and burial in Montana.
In her will, Flo named her sister Mary Ann as her executor (personal representative). Prior to Flo’s death, and at Flo’s direction, Mary Ann consulted with a local funeral director in Anamosa regarding Flo’s wishes to be buried in Montana. The funeral director told Mary Ann that Flo’s surviving spouse Michael would have the final authority regarding the final disposition of Flo’s remains, and that there was nothing that Flo could do about it. The funeral director later told Flo the same (wrong) information.
When Flo died, the fight over what to do with Flo’s remains followed. Mary Ann wanted to have Flo’s remains sent to Montana in accordance with Flo’s wishes. Flo’s surviving husband Michael wanted Flo buried in Anamosa, Iowa. The funeral home agreed to keep Flo’s remains stored at the funeral home pending a court order. The decision of the Iowa Supreme Court was issued on February 22, 2013.
The district probate court in Iowa County ruled against Michael and ordered that Flo’s remains should be transported to Montana. However, Michael appealed to the Iowa Supreme Court and was ultimately successful. The Iowa Supreme Court agreed that the Iowa Final Disposition Act gives the surviving spouse authority to make final disposition decisions – unless the surviving spouse has followed the correct procedures to give that authority to someone else.
IOWA FINAL DISPOSTION ACT:
The Iowa Supreme Court carefully applied the specific provisions of the Iowa Final Disposition Act – Chapter 144C of the Iowa Code. What does this Act provide?
Contrary to what the local funeral director told Flo, there was something more that Flo could have done to assure that her wishes were carried out. The Final Disposition Act specifically provides that any competent person can execute a declaration that designates or appoints a person as “my designee” to have “sole responsibility for making decisions concerning the final disposition of my remains” as well as funeral plans, if any. A specific form is included in the Act at Section 144C.6(1). The Act then goes on to say that this form must be “contained in or attached to a durable power of attorney for health care under chapter 144B” and describes the specific procedure that must be followed for the declaration to be effective.
If a person does not execute a durable power of attorney for health care which either contains or has attached to it the final disposition directive as outlined above, the Act then provides a list of which survivors are granted authority under the law to make those final disposition decisions and plans. Without going through the entire list, suffice it to say that the first person on the list is a surviving spouse; followed by surviving child(ren), parent(s), grandchild(ren), and then other more distant relatives.
In Flo Whalen’s case, she died as a resident of Iowa in 2012. Therefore, Iowa law determined the outcome of the case. Because Flo did not execute a directive pursuant to Iowa Code chapter 144C, her surviving spouse had the authority to decide where and how she would be buried. It did not matter what Flo said in her will, or how many letters she wrote to her children or others – if she did not follow the law as found in the Iowa Code, her wishes would not be carried out.
What can be learned from the case of Flo Whalen?
First, seek legal advice from a lawyer. The funeral director is not a lawyer and did not know the law. Prior to her death, Flo and her family members could have consulted with an Iowa attorney regarding their concerns. Instead, they talked to a funeral director who wrongly informed Flo and her family that there was nothing Flo could do to give the authority to make final disposition decisions to anyone other than her surviving spouse. Person with questions about the law should make an appointment to see an attorney and ask for complete legal information regarding such concerns.
Second, any person over the age of 18 should have powers of attorney in place. Powers of attorney are substitute-decision-making tools – these documents appoint another person to make decisions about personal business or health care in the event of incompetency. Without these tools in place, expensive court procedures are necessary to appoint guardians or conservators. Any Iowa attorney can assist in executing powers of attorney – it is a simple and inexpensive process.
Finally, if you do not have a complete estate plan in place – no matter the size of your estate or assets – seek out legal advice and complete that process. To find an attorney, consider the guidelines found in this publication: Estate Planning Attorneys: Finding One Who Can Work For You on the Ag Decision Maker website at this link: www.extension.iastate.edu/agdm/wholefarm/html/c4-61.html
Consider attending an estate planning workshop offered by your local ISU Extension office – call to find out when one may be offered in your area, or go to Ag Decision Maker for more information:
As always, each reader should contact their own attorney to obtain legal advice based on their own situation.
Note: Iowa State University Extension & Outreach does not provide legal advice. Any information provided is intended to be educational and is not intended to substitute for legal advice from a competent professional retained by an individual or organization for that purpose.
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