Organ And Tissue Donation And Your Estate Plan

At the precise moment this article was being written, the United Network for Organ Sharing (UNOS) reported that 106,036 people were waiting for an organ transplant. From 1988, the first year they began tracking, to 2025, there have been 511,873 donors, both living and deceased. In 2025, there were 14,074 donors, of which 9,993 were deceased donors. While this may seem like it should be ample donors, donors and those waiting for transplants must match based on factors such as blood type, weight, height, other medical conditions, and geography. This means there is always a need for more donors.

Sometimes, people opt to donate their organs or entire body for research, to help find cures for various medical conditions, so they can help more than just the individuals who might otherwise receive their organs. If you have decided that tissue donation or organ donation is something you would like to do after you have died, these wishes must be documented before you die. Putting your wishes in your estate plan can be important, and it is also vital to understand any impact your decision to donate may have on your estate.

At Loughlin Law, P.A., our experienced estate planning attorneys may be able to assist you with expressing your wishes clearly in your estate plan so that your family will know exactly what you wanted. Call (561) 677-8384 to schedule a conversation and learn more about this generous and lasting decision.

Ensure Your Wishes Are Legally Documented

The first step to becoming an organ or tissue donor is legally documenting the individual’s desire to become one, so that others are aware of it. The two simplest and most common methods are registering with the Florida donor registry or declaring the individual’s intentions with the Florida Department of Motor Vehicles so that their driver’s license is marked to indicate their desire to donate.

When an individual dies, the state’s donor registry is checked to see if they are an organ donor. When an individual is registered either directly with Donate Life Florida or through their driver’s license, it will show up during this check. This makes their wishes legally known and irrevocable. This means the family cannot change the status, but it also means they do not need to make the decision during this difficult time. For retired individuals who divide their time between Florida and another state, most states attempt to confirm whether the individual is registered in another state, but registration in all states in which they spend time can ensure quick confirmation upon their death, so that the tissue donation or organ donation can proceed quickly.

Why Including Your Donation Plans in Your Estate Plan Is Essential

While registering with the state donor registry legally documents your wishes, it is still important to include the intention to donate organs, tissues, or the entire body in the individual’s estate plan. There are three main reasons for this:

• Clarity: Inclusion in a person’s estate plan ensures there is no confusion about their intention to be an organ or tissue donor. Additionally, the individual can be explicit about exactly what they intend to donate and why, such as whole body donation for research purposes.
• Legality: Registration with the state registry is legally binding, but inclusion in the individual’s estate plan provides a legally binding document that healthcare professionals and family must follow. This can also be beneficial if the registry is inaccessible or there is an error and the individual’s name is not on the registry.
• Relief for Your Family: When family members are struggling to accept that their loved one is dying, or has just died, they are approached regarding organ donation or tissue donation. This is necessary due to the immediacy with which donated organs and tissues must be removed and transported for donation or research. However, it is also the most difficult time for family members to try to make this decision. Including it in an estate plan alleviates the emotional strain and spares the family from having to try to make this decision.

How to Incorporate Your Donation Plans Into Your Estate Plan

There are three steps to take to incorporate donation plans into an estate plan. Each of these steps is crucial to ensuring the individual’s wishes are carried out after they have died.

Add Provisions to Advance Directives

The first step is to add provisions for organ or tissue donation to advance directives in the estate plan. These provisions can be added to the individual’s living will and their durable power of attorney (DPOA) that names their healthcare surrogate (the person who will make healthcare decisions on the individual’s behalf if they are mentally or physically unable).

Individuals can also include their desire to be an organ or tissue donor in their will or in a trust. A trust does not go through probate, so the instructions it provides may be carried out quickly. However, a will must go through probate, which means that the family may not know about any provisions for donating tissues or organs until the window for donating has passed. Additionally, when a family is caught up in grief immediately following their loved one’s death, they may not seek out the will or trust documents immediately. However, living wills and DPOAs are available before the individual’s death, as they spell out the specific wishes for the kind of medical care they want to receive or the name of the person they want to make these decisions for them.

Communicate With Healthcare Surrogate and Family Members

While the provisions for donation may be included in a DPOA or living will, it is still critical to specifically communicate the desire to be a donor to the individual’s healthcare surrogate. This can be a difficult conversation, but it is necessary to ensure there is no confusion or doubt for the individual designated to make such pivotal decisions.

Additionally, individuals should have conversations with their family members about this decision. While other family members may not be responsible for ensuring that the decision is carried out, the surprise and confusion of finding out at the time of their loved one’s death may make them feel betrayed and hurt. By preparing them early for what will happen when their loved one dies, the individual allows them time to process the decision and come to terms with it, even if they disagree with it.

Review and Update Donor Status Regularly

Some people decide they do or do not wish to donate and never think about it again. Others make a decision but then change their minds later due to discussions with family, events in the news, or donor recruitment events or campaigns. Regardless of an individual’s decision, they should review their donor status regularly and update it as needed. For example, if an individual initially intended to donate their organs for transplant but later decides to donate their whole body for research purposes, they should ensure that their estate plan documents are updated to reflect this change. Simply telling family verbally of the change may not be enough to have it carried out.

How Organ and Tissue Donation Can Impact Your Estate Plan

There is no cost to the family or the individual’s estate for tissue donation or organ donation. However, there are some rare but possible effects that donation can have on an individual’s estate. The chances of these impacts are rather low, but it is recommended that individuals consult with a knowledgeable estate planning attorney at Loughlin Law, P.A. to find out if and how these effects may apply to their estate.

The possible impacts of donation on an individual’s estate include:

• Reduced Estate Value: In rare cases, the donation of tissues or organs may reduce the estate’s value, reducing its tax liability. Additionally, if the individual decides to make a charitable financial donation to a donation organization or establishes a charitable trust or foundation in conjunction with their physical donation, these contributions may be eligible for charitable deductions.
• Reduced Funeral Expenses: Although donation typically does not interfere with funeral arrangements or the donor’s appearance, it may occasionally reduce funeral expenses. In particular, a whole-body donation to science can eliminate the need for embalming and a casket, reducing the expenses associated with funerals.
• Cremation Costs Covered: When a whole-body donation for scientific research is made, sometimes the organization coordinating the donation may cover cremation costs. They will not cover other funeral costs, but covering cremation expenses can significantly reduce funeral expenses. Additionally, cremation is often less expensive than a traditional burial.

What If Your Family Disagrees With Your Decision?

Under FL Stat. § 765.512, tissue and organ donations made by qualified donors and not revoked by donors become irrevocable upon the donor’s death. This means that once an individual dies, their decision to become a donor is not reversible. Therefore, their family cannot override the decision.

However, the key to this is that the decision to donate must be properly documented through an approved method, such as being on the donor registry or clearly outlining the decision in an advance directive in the individual’s estate plan. If their decision was only verbally communicated to loved ones, but never legally and appropriately documented, a family member who disagreed with them may be the one who makes the final decision. This is why it is essential that individuals clearly detail their decision to donate tissues or organs in their estate plan.

Important Aspects of Donation to Consider

While donating tissues, organs, or the entire body is a very generous gift to either a transplant patient or science, there are several important aspects of such donations to consider before making a decision. Individuals should consider discussing these aspects of donation with loved ones, an estate planning attorney, and their healthcare providers to ensure they are making a fully-informed decision.

Donation Timeliness

Whether the individual is donating specific organs or tissues for transplant, or their entire body for scientific research, the process of procuring the organs, tissues, or body must be started and completed quickly. Once the body has died, there are short windows during which the various organs remain viable. If a decision regarding donation is not made before the individual’s death and their family members disagree over whether to donate or are unable to think clearly enough to make a decision, the window for donation may pass. Therefore, it is best to decide before death so that the issue is resolved and organ and tissue procurement can begin promptly.

Irrevocable Decision

During the individual’s lifetime, they can change their mind about donation as many times as they like. However, once the individual has died, it is an irrevocable decision. As the individual begins nearing death, they may lose the mental capacity to make this decision. This is why they should review and update their choice regularly. If they change their mind regarding donation due to something they have seen in the news, religious reasons, or other reasons, but do not update their estate plan to reflect this change, they may end up becoming a donor despite the change of heart.

Charitable Financial Donations

Sometimes, an individual may feel strongly that donating tissues and organs is a worthy cause, but not wish to donate themselves. Maybe they want to donate their own tissues and organs, but also want to do more. In either of these cases, and others, individuals can consider making charitable financial donations through their estate plan. This can mean leaving a donation in their will, creating a charitable trust, naming a donation organization as beneficiary of a retirement account or life insurance policy, or donating property or appreciated stock. A skilled estate planning attorney can assist individuals with deciding the most suitable method of making a charitable donation based on their estate assets.

Donation Suitability

Individuals may be concerned that being overweight, having high blood pressure or diabetes, or other medical conditions may make them unsuitable for donating tissues or organs. However, age and most pre-existing medical conditions do not automatically disqualify someone from being an organ or tissue donor. Medical specialists will evaluate the individual’s suitability for donation at the time of death. Therefore, if an individual feels the urge to register as a donor, regardless of their health status or age, they should do so and allow the medical specialists to determine whether to move forward when they have died.

Can You Change Your Donor Status If You Have Dementia or Other Mental Incapacity?

Sometimes, people are concerned about changing their minds regarding tissue or organ donation when they have dementia or other cognitive issues. They may be concerned that they have decided to be a donor, but will claim to have changed their mind and have their wishes ignored because of their mental incapacity. They may also be concerned that they will have a sincere, last-minute change of heart and not be able to change their mind.

Organ donation, like other medical procedures, requires informed consent. This means that if there are questions about the individual’s mental state and whether they truly understand the implications of their decision to donate or change their donor status, it may require a medical evaluation to determine their ability to make informed decisions before deciding whether their decision to donate or change their status can legally be made. This is why it is important to review and update their status regularly to ensure their wishes are honored. Additionally, if the individual did not decide for themselves before becoming mentally incapacitated, a legally appointed healthcare agent, surrogate, or next of kin will decide for them.

How a Florida Estate Planning Attorney Can Assist You

Individuals who choose to make a tissue donation or organ donation after their death are making a very thoughtful and unselfish decision that can have a beneficial impact on many lives for decades, if not lifetimes. However, it is also a very serious decision that should be carefully considered. Once you have made the decision, it is critical to ensure that it is carefully documented to ensure that your wishes are carried out. At Loughlin Law, P.A., our skilled Florida estate planning attorneys may be able to assist with ensuring your decision is documented in a living will or DPOA, setting up charitable trusts, and other aspects of including your donation decision in your estate plan. Call (561) 677-8384 to schedule your consultation to learn more about how you can include such a benevolent gift in your estate plan.