Funeral and Burial Plans: Iowa Law Provides Who Gets to Decide

MelissaORourke2-Nov2011Contributed by: Melissa O’Rourke, ISU Extension Farm & Agribusiness Management Specialist,   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.


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:

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.

Ag Decision Maker (AgDM) 

An agricultural economics and business website.

Should you allow farm visits?

Contributed by Melissa O’Rourke, B.S., M.A., J.D. Farm & Agribusiness Management Specialist, Iowa State University Extension & Outreach, 

Sallee vs. Stewart: Does chaperoning a school tour, which includes a trip to the barn hay loft for kindergarten children to play on hay bales, constitute a “recreational use” as that term is used in Iowa’s recreational use statute found at Iowa Code chapter 461C? 

The Iowa Supreme Court recently announced a ruling that raises issues about the wisdom of having visitors – including group tours or open house events – on the farm. It is worth taking time to review the facts of the case and the basis for the Court’s decision as farmers and landowners consider how to react to the recent announcement. 


Each year, the kindergarten class of Sacred Heart Elementary School in Oelwein, Iowa made a field trip to the dairy farm of Matt and Diana Stewart (Stewart Land Holsteins) in rural Fayette County. The group of visitors included the children, teacher and several parents serving as chaperones. At least one member of the Stewart family stayed with the group in a tour guide role at all times. 

On May 18, 2010, the kindergarten class arrived at the Stewart farm for their scheduled visit. Accompanying the group as a chaperone was Kimberly Sallee whose daughter was in the kindergarten class. In the Court’s opinion, Kim Sallee is described as “a very large woman.”  For the dairy farm visit, the Stewarts arranged three stations for the students providing the following experiences: (1) riding a horse in a round pen; (2) feeding a calf a bottle of milk; and (3) going to the hayloft where the children could climb and play on hay bales. A Stewart family member was present at each station. At the hayloft station, Matt Stewart asked Kim Sallee and another parent to go into the loft ahead of the students to assist them at the top of the ladder.  Matt Stewart assured Sallee that the ladder would support her weight. Sallee, the other parent, Matt and the children proceeded to the hayloft and the children played on the hay bales. The children were warned to not climb too high on the bales of hay. The Stewart’s hayloft is equipped with “hay drops” – rectangular holes through which bales of hay can be thrown to animals below.  Stewarts ordinarily stack bales of hay across the hay drop holes when not in use to insulate the lower part of the barn. Prior to the kindergarten tour, Matt inspected the hayloft and stood on bales of hay covering the holes to make sure they would support his weight. He did not warn Sallee or others of the presence of the hay drops, nor did he warn them to not stand on these bales. While in the hay loft, Sallee stood on top of a bale covering one of the hay drops. The bale gave way, Sallee fell through the hay drop and broke her wrist and ankle/leg. 

Procedural History: 

Kim Sallee incurred medical bills and lost time from work. As is typical, the court’s opinion does not state whether the Stewart’s had liability insurance. However, it is worth noting that the on the website of the Stewart’s law firm, the list of representative clients is exclusively insurance companies. Assuming that the Stewart’s did have premises liability insurance, this lawsuit likely included what are known as subrogation issues – that is, Sallee’s medical insurer would seek reimbursement from Stewart’s liability insurer for medical bill payments. Additionally, Sallee would seek compensation for her pain and suffering, lost time from work, and her possible temporary or permanent disability due to the injuries she suffered by falling through the hay drop on the Stewart’s farm. 

 Sallee filed a lawsuit in August 2010. The Stewart’s argued that they should not be liable for Sallee’s injuries based on Iowa Code chapter 461C – the recreational use statute. By April 2011 the Stewart’s filed a motion for summary judgment – a motion that essentially asked the judge to dismiss the case against them based on a shield from liability arising from the Iowa recreational use statute. While the district court initially ruled in favor of the Stewart’s, appeals followed and the case eventually wound its way to the Iowa Supreme Court. 

On February 15, 2013, the Court issued a 75-page opinion (including a special concurrence and a dissent) with in-depth discussion on a wide range of legal issues related to recreational statutes throughout the U.S. The lengthy opinion reads much like a scholarly law review article.  


Iowa’s recreational use statute as found at Iowa Code chapter 461C provides in pertinent part that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes . . . or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for [recreational] purposes.”  The statute goes on to provide that “a holder of land” who invites a person onto that land, without charging them, and allows the property to be used for “recreational purposes” does not “extend any assurance that the premises are safe for any purpose” or “assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.”  

Of particular note, the Iowa statute provides a definition of “Recreational purpose” to include the following specific list of activities: “Hunting, trapping, horseback riding, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycling, nature study, water skiing, snowmobiling, other summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites while going to and from or actually engaged therein.”  See generally Iowa Code chapter 461C. 

The Court discusses the history and development of recreational use statutes as well as a detailed review of court decisions from around the U.S. Thereafter, the opinion includes the legislative history and analysis of Iowa’s recreational use statute that was first enacted in 1967 and has thereafter been amended several times. The Court notes that at least half of the states with recreational use statutes containing a definition of “recreational use” include the phrase “includes but is not limited to.”  Iowa’s definition does not include this or any other kind of “catchall provision” but rather includes a specifically enumerated list of activities. While there are few cases interpreting Iowa’s recreational use statute, the opinion reviews those most relevant to the Sallee lawsuit. 

Finally, the Iowa Supreme Court reached the facts of the Sallee case and considered this central question: Did Kimberly Sallee’s activities on the Stewart farm constitute a recreational use within the meaning of the Iowa recreational use statute?  The Court went through a detailed analysis, including the basic rules of statutory construction (legal interpretation). The Court concluded that “the activities which occurred in the hayloft do not constitute recreational uses under the Iowa statute.”  The Court’s opinion holds that immunity is only available under the Iowa recreational use statute if guests are on the property for the purpose of engaging in one of the activities specifically listed in Iowa Code chapter 461C. It is also worth noting that the Court focused on what Kim Sallee and the children were doing at the time of the injury. So, even though the kindergarten students engaged in horseback riding and calf feeding (which can be classified as “nature study”) – because the students were playing in the hay loft and Sallee was a chaperone of that play activity at the time of injury, there was no immunity for the Stewart’s under these facts. Thus, consider this scenario: A farmer or landowner allows a visitor to hunt on the farm property and at some point that individual stops hunting and engages in an activity not included in the statutory list of “recreational use” activities (such as collecting firewood). The visitor is injured while engaged in that wood collection activity. Under the Court’s analysis, immunity under Iowa’s recreational use statute is unavailable to the farmer/landowner – and liability is incurred for the visitor’s injuries and damages. 

Implications for Iowa Farmers and Landowners 

After this ruling, Iowa farmers and landowners should give careful thought before inviting or allowing visitors to their farms – including large or small groups for the purpose of a field trip or tour, or individuals who seek (for example) to hunt, trap, fish or hike. Farms are full of hazards, and all farm operators must be particularly vigilant regarding farm safety – for family members and relatives, employees, and occasional visitors. However, in light of the Sallee decision, farmers and landowners should consider the following: 

  1. Adult Visitors: While adults can be required to sign a release before visiting, this may be of limited use, if any. Should the farmer or landowner wish to consider this option, it should only be upon the specific advice of an attorney consulted for this purpose, and using a release drafted by that attorney (NOT a form found on a website). But remember – in Iowa, parents cannot sign a release waiving the claims of their minor children so there is absolutely no protection in this regard.
  2. Premises Liability Insurance: In consultation with your own legal professional, obtain formal, written assurance from your premises liability insurer that any damages incurred by any person in the course of visiting your farm or farmland are clearly and specifically covered by your policy – and that your coverage limits are adequate. Without such written assurance, farmers and landowners should refrain from such activities. Again, farmers and landowners should seek individual legal advice in this regard.
  3. Legislation: Consider contacting your state legislators and ask that the Iowa statute be amended to specifically include agricultural or farm-based activities – tours, 4H groups, school and other youth groups – to include their teachers, parents, chaperones. While we should always take care to minimize dangerous conditions on our property, accidents do happen. Specifically, the Iowa legislature will need to study what language is needed to abrogate the legal effect of the Sallee case.

Each reader should contact their own attorney and insurer to obtain legal and liability advice based on their own situation. 

Note: Iowa State University Extension and 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.

Ag Decision Maker (AgDM)

An agricultural economics and business website.

Federal Estate, Gift Taxation and the “Fiscal Cliff”: Where Did We Land in 2013?

Contributed by Melissa O’Rourke, B.S., M.A., J.D. Farm & Agribusiness Management Specialist, Iowa State University Extension & Outreach,

Waiting until the very last moment, Congress passed and the President signed the American Taxpayer Relief Act of 2012 on January 3, 2013. The good news is that a number of key provisions related to federal estate and gift taxes have been made permanent – that is, without an expiration or “sunset” date contained in the current legislation. This brings an increased level of certainty for professional planners and those who have estates that could be impacted by federal estate or gift taxes.

Many farmland owners and farm families have been concerned during the past two years, wondering what would happen to the estate tax exemption under federal law. Essentially, under the federal estate tax law as most recently revised in 2010, individuals can transfer to others a basic exclusionary amount of up to $5 million free of federal taxation during lifetime or at death. This figure is adjusted for inflation, so in 2012 it was $5.12 million. If Congress had failed to act, that tax-free amount would have been automatically reduced to $1 million; and the tax rate for estates over $1 million would have increased to 55%.

Not surprisingly, Congress did not allow this to happen. The new tax law makes the $5 million exemption amount permanent and this exemption will continue to be indexed for inflation. While the exact figures have not been released, the exemption is expected to be $5.25 million for 2013 and up to $7.5 million by 2020.

The only significant change made by Congress is to the tax rate for gift and estate taxes. The formerly top rate of 35% has been increased to a maximum of 40% for estates over the basic exclusionary amount. While this is an increase, it is definitely better than the 55% which would have taken effect if Congress had failed to act – and some observers comment that the 5% increase is a reasonable trade-off for the certainty afforded by the new law.

Two other aspects of the federal estate and gift tax system were also made permanent by the act just passed.

First, provisions allowing portability of the $5 million exemption between spouses remain in effect on a permanent basis. How does this work?  In the first instance, the marital deduction remains in place, meaning that spouses can inherit from one another in an unlimited amount (as long as the inheriting spouse is a U.S. citizen). After the first spouse dies, the surviving or second-to-die spouse can add any unused exclusion of the first-to-die spouse to the surviving spouse’s exclusion. In 2013, this will allow spouses to transfer a total of about $10.5 million free of federal estate or gift tax.

It is important that after the death of the first spouse that the unused exclusion amount is transferred to the surviving spouse as part of the estate proceedings – by timely and properly filing of a federal estate tax return, even if no tax is owed. The surviving spouse can use that unused exclusion amount plus their own exclusion to make lifetime gifts or pass assets through the estate of the second-to-die spouse. The surviving spouse should strongly consider filing the estate tax return even if the level of wealth does not appear to reach current exclusion levels since it is difficult to predict increases in estate values during the interim years. As always, families and individuals should seek advice from their personal tax and legal professionals.

Second, the estate and gift tax system will remain “unified.”  As noted previously, the $5 million exemption or “unified credit” (with inflation indexing) is applicable to both lifetime gifts and assets passed through an estate after death. Estate planners should document gifts, maintain a cumulative total and report gifts to the IRS so that there is a record of lifetime gifts at the time of death. The total of taxable lifetime gifts is then deducted from the exclusion amount to determine the unused exclusion remaining available at death. Remember, lifetime gifts within the annual exclusion amount ($14,000 in 2013) do not count against the lifetime basic exclusion (the $5 million inflation-adjusted amount). As an example, a couple can give unlimited $28,000 gifts in 2013 to as many different individuals as desired – and these gifts would not count against the lifetime exclusion.

Remember that this article is intended to be an educational, brief summary regarding aspects of the new tax law. All farm families and individuals should obtain advice for their own personal situations from legal and tax professional retained by them for that purpose. As always, please feel free to contact me with your questions and comments.

Ag Decision Maker (AgDM)

An agricultural economics and business website.

Drought and Income Tax Deferral of Crop Insurance and/or Disaster Payments

Roger McEowen, Center for Ag Law and Taxation, has written an article addressing issues that may arise from deferral of crop insurance and/or disaster payments as a result of the 2012 drought. “The Internal Revenue Code allows deferability of crop insurance proceeds if certain requirements are satisfied.” The article, available on the CALT website, focuses on deferability and payment trigger under current policy, including examples. For more information, read the full article,  The 2012 Drought and Income Tax Deferral of Crop Insurance and/ or Disaster Payments .

Ag Decision Maker (AgDM)

An agricultural economics and business website.

Call before you dig…

Melissa O’Rourke, ISU Extension Farm & Agribusiness Management Specialist

As pointed out on the Iowa One Call website , Iowa law requires farmers to notify Iowa One Call at least 48 hours prior to all excavation.  Saturdays, Sundays and legal holidays are excluded, so additional time must be allowed under those circumstances.

Excavation does not include what might be termed “normal” farming operations such as plowing, cultivation, planting and harvesting. However, other farm operations may be considered as excavations which trigger the Iowa One Call requirement.

Excavations in the farm setting include chisel plowing, sub-soiling or ripping more than 15 inches in depth, drain tile excavation and installation, terracing or digging.  Excavation also includes driving a post in a new location other than repairing a fence in its existing location.

There are all sorts of buried pipelines, telecommunications cables, and other types of buried facilities that may exist on farm property.

If a farmer fails to notify Iowa One Call, that farmer may face civil penalties and be held liable for damages caused to these buried facilities.

It is advantageous for Iowa farmers to comply with the Iowa One Call system because such compliance provides a liability exemption for farmland owners.

An owner of farmland used in farm operations (see Iowa Code section 352.2) who complies with Iowa One Call will not be held responsible for damages to underground facilities if the damage occurred on the farmland in the normal course of farm operation. Of course, the exemption does not apply if the landowner intentionally damages the underground facility or “acts with wanton disregard or recklessness” in causing damage to an underground facility such as pipeline or buried cables.

And farmers should not make any assumptions about the depth of a buried cable, pipeline or other facilities. 

It is easy to plan ahead and make the toll-free call to Iowa One Call to notify of the intended excavation.  Underground facilities will be marked with paint and/or colored flags to approximate the location of the buried facilities.  Iowa law allows for an 18-inch tolerance zone on each side of the marking, so excavation should be avoided within the tolerance zone.

If excavation is needed in the vicinity of the markings, additional guidance is available through Iowa One Call regarding how to safely accomplish the operations without causing damage or encountering hazards.

More information is available at  The phone call is toll-free by either dialing 811, or calling 1-800-292.8989.

Ag Decision Maker (AgDM)

An agricultural economics and business web site.

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