Controlling Your Funeral
In New Jersey, you cannot preauthorize your own final disposition. You can prearrange and prepay for your funeral, you can acquire a cemetery plot or express where you would like your ashes to be scattered, but you cannot sign the final authorization for disposition yourself.
New Jersey, as well as other states, has what is called the Right to Control Law (N.J.S.A. 45:27-22). The law, absent the appointment of a funeral agent in a will or on a specifically regulated and notarized form, outlines a next-of-kin hierarchy depicting who has the right to control the funeral and disposition of a deceased person. The person with the right to control is not necessarily the executor of the will.
Unless a court of competent jurisdiction has given other directions, the right to control hierarchy is as follows:
- Funeral agent or designee on an active duty service member's DD Form 93*
- Legal spouse, NJ registered domestic or civil union partner
- Majority of surviving children over the age of 18
- Surviving parent(s) of decedent
- Majority of surviving siblings over the age of 18
- Other relatives according to the degree of relationship
- If there are no known living relatives as outlined above, the funeral director and cemetery may accept the written authorization of other interested parties (i.e., friend, neighbor, colleague)
* In the case of an active duty service member who died while on active duty in any branch or component of the United States Armed Forces, including the New Jersey National Guard called to federal active duty, the person designated by the decedent as authorized to direct disposition, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, shall be the person appointed to control the funeral and disposition of the remains of the decedent.
Know the Law
New Jersey law also clarifies why and how the right to control a funeral is either relinquished by someone or transferred to the next person within the hierarchy:
- The individual(s) with the right to control has 72 hours after the decedent’s death to exercise that control. If the person with right to control fails to exercise their right within 72 hours or if the person is unable to be notified after a reasonable attempt to notify, the right to control will pass to the next person in the right-to-control hierarchy.
- State law defines a reasonable attempt to notify as a good faith effort to contact the individual(s) with the right to control the funeral and disposition via registered mail, email, or telephone by a family member, the personal representative of the decedent, or any other interested party. If a reasonable attempt to notify is unsuccessful, the individual(s) assuming the right to control the funeral and disposition shall attest in writing that a good faith effort was made to contact any individual(s) with a higher priority of right to control.
- If the individual with right to control is deemed medically incapable or medically incapacitated by a licensed physician, then the right to control transfers to the next priority class.
- The person with right to control is permitted to relinquish that right, at which point the authority will transfer to the next individual(s) in the hierarchy.
- If the decedent has a temporary or permanent restraining order against the individual(s) in the highest priority class or if such individuals are charged with the intentional killing of the decedent, then the right to control the funeral and disposition shall be transferred to the next person or persons in the hierarchy.