Declaration Of Disposition Of Remains

A funeral director preparing an urn of cremated remains for a funeral.

Declaration Of Disposition Of Remains

A sound estate plan involves a vast range of choices and decisions to make, from planning for incapacity to preparations for carrying out your final wishes after death. Most of the planning is around choosing fiduciaries, finances, and the distribution of assets and property, yet planning how you would like your loved ones to dispose of your remains is an easily-overlooked essential. One of the primary reasons people develop an estate plan is to avoid family disagreements and disputes. While the first form of conflict that comes to mind for many is arguments over property, debates over what to do with the decedent’s body after death are also common. Therefore, planning for the final disposition of remains is a crucial aspect of estate planning. To learn more about options for the disposition of remains, schedule an appointment with an experienced estate planning attorney at Loughlin Law, P.A., by calling (561) 677-8384.

Understanding Your Disposition of Remains Options

Disposition of human remains refers to what happens to someone’s physical body after death. In estate planning, the declaration of disposition of remains is a legal document in which the individual establishes how they would like their body to be treated, both before and after any funeral. Some people wish to leave their bodies to scientific and medical research; others leave a message asking their family or friends to ensure the remains will be cremated and the ashes sprinkled in a location that had special meaning for the individual during life. Still others take the opportunity to express their preferences about where and how their remains will be buried.

While in many cases a family or the friends left behind will go to heroic efforts to ensure that the decedent’s wishes are followed to the letter, it is also helpful to have a backup plan in place. Unforeseen circumstances could make it impossible for loved ones to carry out the instructions left to them exactly as described. For this reason, anyone preparing to draft a declaration of disposition of remains should familiarize themselves with a wide range of options they may consider.

Earth Burial

Earth burial is a traditional disposition option familiar to most people in the United States. In an earth burial, the body remains intact, and a funeral home places the remains in a casket to be buried in the earth. Earth burial allows the body to decompose naturally. People can choose to be embalmed before burial or not; it is up to the estate planner. They can also decide whether they would like their final resting place to be in a cemetery, such as those maintained by some municipalities and in many cases by local religious institutions, or on private property, such as in a family burial plot.

Entombment or Above Ground Burial

Entombment is in many respects similar to earth burial, but most often disposes of the remains above-ground. The funeral home will place the body in an above-ground crypt, which typically refers to the space reserved for a single body in a larger structure such as a mausoleum or a church. While above-ground burial is more standard for entombment, it is worth noting that in some cases crypts may be built below ground level; entombment still differs from earth burial in that the casket is placed within a crypt, rather than directly into the earth, and in the fact that below-ground crypts, like their street-level counterparts, are typically individual compartments within a larger whole.


Cremation is an alternative to burial that involves burning the body. The estate planner may set out in their declaration of disposition of remains what they would like their family to do with their ashes after cremation, or they may leave this choice up to the loved ones to decide. Cremation can be a considerably less expensive option than burial; however, many people have strong personal feelings against the cremation of their remains, or they may object on the grounds of their religious beliefs.

What Happens if I Don’t Make a Declaration?

If the estate planner does not make a declaration of disposition of remains, according to Florida Statute § 497.005, the person with priority responsibility for the decision-making regarding the decedent’s remains is as follows:

  • The surviving spouse, unless there is an open investigation or accusations that domestic violence contributed to the death
  • Adult children
  • Adult siblings
  • Adult grandchildren

If none of the listed family members is available, the decision will fall on the person with the next degree of kinship or unrelated parties with authority, such as directors of long-term care facilities.

Florida Cremation Laws: Everything You Need To Know

The family must have the death certificate to move forward with performing the cremation process in Florida. Further, the person with legal authorization to make disposition of remains decisions must provide their written permission for the body to go through cremation and provide their intentions regarding the final resting place of the cremated remains.

Purchase of Casket for Cremation

No laws require the decedent’s estate to purchase a traditional casket for the body to rest in during the cremation process. However, federal laws require the funeral home to inform the deceased’s individual’s family about the container they will use.

Scattering Laws

Many estate planners are surprised to learn that there are laws in some states regarding the scattering of ashes after cremation. However, those ashes are still human remains, including fragments and bones, and the people in possession of the ashes must handle them with care. Florida does not have specific laws restricting the scattering of the ashes, but encourages people to use care when scattering them. A knowledgeable estate planning attorney at Loughlin Law, P.A., could answer specific questions about the disposition of remains to help the estate planner decide which option is the best fit for them.

Florida Law Regarding Death Certificates

In the state of Florida, the funeral director responsible for disposing of a body is typically also responsible for filing a certificate of death with local offices. This certificate must be filed within five days of the death and before final disposition of remains can take place. Florida Statute § 382.008 does provide a list of alternative parties who may take responsibility for filing if the funeral director is not available.

The medical examiner, or in some cases a physician or an advanced nurse practitioner, is responsible for completing the medical certification of the cause of death within a further 72 hours of receiving the death certificate from the funeral director, except under certain extenuating circumstances, such as when the cause of death is still under investigation. This system helps to prevent grieving friends and family from being responsible for the full burden of record-keeping and documentation that must be completed in the days immediately following a death.

Call a Qualified Estate Planning Attorney Today

The death of a loved one is always a sad time of mourning, and it can be challenging to handle even small tasks. Being in charge of making burial or cremation plans and organizing while grieving a loved one is often overwhelming. Therefore, including clear instructions about the disposition of final remains in your estate planning documents is an act of care for those you leave behind, and a crucial part of every estate plan. Preparing can ensure your family knows your wishes for the final disposition of your remains, and save them from the additional stress of being in charge of making decisions they may not be ready to make on behalf of a loved one. Leaving a plan also helps family members avoid disagreements over what they believe you would have chosen yourself. If you have questions about your options for the disposition of remains, call a seasoned and compassionate Florida estate planning lawyer at Loughlin Law, P.A., by calling (561) 677-8384 to schedule an appointment.

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