who is the next of kin?

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SENATE BILL 2916

By Overbey

AN ACT to amend Tennessee Code Annotated, Title 32;

Title 47; Title 62, Chapter 5 and Title 68, relative to

human remains.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 62-5-502, is amended by deleting the

section in its entirety.

SECTION 2. Tennessee Code Annotated, Title 62, Chapter 5, is amended by adding

the following language as a new, appropriately designated part:

62-5-701. As used in this part, unless the context otherwise requires:

(1) “Disposition directions” means a legible written instrument signed by the

decedent and acknowledged by a notary or witnessed by two (2) persons who are

qualified adults; provided, that such written instrument may be, but is not limited to, a

letter of instructions, a will, a trust document, or an advance directive;

(2) "Qualified adult" means a person who is eighteen (18) years of age or older

and of sound mind; and

(3) "Right of disposition" means the right to determine the disposition of the

remains of a decedent, including the location, manner, and conditions of disposition and

arrangements for funeral goods and services.

62-5-702.

(a) A qualified adult, by entering into disposition directions or a pre-need funeral

contract executed pursuant to part 4 of this chapter, may direct the location, manner and

conditions of disposition of the adult’s remains, and the arrangements for funeral goods

and services to be provided upon the adult’s death.

(b) No disposition directions or pre-need funeral contract shall be subject to

cancellation or substantial revision unless the cancellation or substantial revision has

been ordered by a person who the decedent has appointed in the disposition directions

or the pre-need funeral contract as the person authorized to cancel or revise the terms of

the disposition directions or the pre-need funeral contract, or unless any resources set

aside or available to fund the disposition directions or the pre-need funeral contract are

insufficient to carry out the funeral and disposition arrangements set forth in the

disposition directions or pre-need funeral contract.

62-5-703. Except as set forth in § 62-5-704, and in the absence of disposition directions

or a pre-need funeral contract, the right to control the disposition of the decedent's remains, the

location, manner and conditions of disposition, and arrangements for funeral goods and

services to be provided vests in the following persons in the order named; provided, such

person is a qualified adult:

(1) An attorney in fact designated in a durable power of attorney for health care

who is acting pursuant to § 34-6-204; provided, the durable power of attorney for health

care, in which the attorney in fact was designated, was executed by the decedent

subsequent to the decedent's execution of disposition directions or a pre-need funeral

contract;

(2) The surviving spouse;

(3) The sole surviving child of the decedent, or if there is more than one (1) child

of the decedent, the majority of the surviving children. However, less than one-half (1/2)

of the surviving children shall be vested with the rights of this section if they have used

reasonable efforts to notify all other surviving children of their instructions and are not

aware of any opposition to those instructions on the part of more than one-half (1/2) of

all surviving children;

(4) The surviving parent of the decedent. If one (1) of the surviving parents is

absent, the remaining parent shall be vested with the rights and duties of this section

after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) The surviving sibling of the decedent, or if there is more than one (1) sibling

of the decedent, the majority of the surviving siblings. However, less than the majority of

surviving siblings shall be vested with the rights and duties of this section if they have

used reasonable efforts to notify all other surviving siblings of their instructions and are

not aware of any opposition to those instructions on the part of more than one-half (1/2)

of all surviving siblings;

(6) The surviving grandparent of the decedent, or if there is more than one (1)

surviving grandparent, the majority of the grandparents. However, less than the majority

of the surviving grandparents shall be vested with the rights and duties of this section if

they have used reasonable efforts to notify all other surviving grandparents of their

instructions and are not aware of any opposition to those instructions on the part of more

than one-half (1/2) of all surviving grandparents;

(7) The guardian of the person of the decedent at the time of the decedent’s

death, if one (1) had been appointed;

(8) The personal representative of the estate of the decedent;

(9) The person in the classes of the next degree of kinship, in descending order,

under the laws of descent and distribution to inherit the estate of the decedent. If there

is more than one (1) person of the same degree, any person of that degree may

exercise the right of disposition;

(10) If the disposition of the remains of the decedent is the responsibility of the

state or a political subdivision of the state, the public officer, administrator or employee

responsible for arranging the final disposition of decedent’s remains; or

(11) In the absence of any person listed in subdivisions (1)-(10), any other

person willing to assume the responsibilities to act and arrange the final disposition of

the decedent’s remains, including the funeral director with custody of the body, after

attesting in writing that a good faith effort has been made to no avail to contact the

individuals listed in subdivisions (1)-(10).

62-5-704. A person entitled under § 62-5-703 to the right of disposition shall forfeit that

right, and the right shall pass on to the next person in accordance with § 62-5-703, in the

following circumstances:

(1) Any person convicted of an offense described in § 39-13-202, § 39-13-210,

or § 39-13-211, in connection with the decedent’s death, and whose charges are known

to the funeral director;

(2) Any person who does not exercise the right of disposition within two (2) days

of notification of the decedent's death or within three (3) days of the decedent’s death,

whichever is earlier; or

(3) If the person and the decedent are spouses and a petition to dissolve the

marriage was pending at the time of the decedent’s death.

62-5-705. If two (2) or more persons hold the right of disposition pursuant to § 62-5-703,

and they cannot, by majority vote, make a decision regarding the disposition of the decedent’s

remains, any of such persons or a funeral establishment with custody of the remains may file a

petition asking the court with probate jurisdiction to make a determination in the matter. The

court with probate jurisdiction for the county where the decedent resided may award the right of

disposition to the person determined by the court to be the most fit and appropriate to carry out

the right of disposition, and may make decisions regarding the decedent’s remains if those

sharing the right of disposition cannot agree. The court shall consider the following in making

such determination:

(1) The reasonableness and practicality of the proposed funeral arrangements

and disposition;

(2) The degree of the personal relationship between the decedent and each of

the persons claiming the right of disposition;

(3) The desires of the person who is ready, able and willing to pay the cost of the

funeral arrangements and disposition;

(4) The convenience and needs of other families and friends wishing to pay

respects;

(5) The desires of the decedent; and

(6) The degree to which the funeral arrangements would allow maximum

participation by all wishing to pay respect.

62-5-706.

(a) In the event of a dispute regarding the right of disposition, no funeral

establishment is liable for refusing to accept, inter or otherwise dispose of the remains of

the decedent or complete the arrangements for the final disposition of the remains until

the funeral establishment receives a court order or other written agreement signed by

the parties to the dispute that determines the final disposition of the remains. If the

funeral establishment retains the remains for final disposition while the parties are in

disagreement, the funeral establishment may embalm or refrigerate and shelter the

body, or both, in order to preserve the body while awaiting the final decision of the

probate court and may add the cost of embalming and refrigeration and sheltering to the

final disposition costs. If a funeral establishment brings an action under this section, the

funeral establishment may add the legal fees and court costs associated with a petition

under this section to the cost of final disposition. This section shall not be construed to

require or to impose a duty upon a funeral establishment to bring an action under this

section. No funeral establishment or its employees shall be held criminally or civilly

liable for choosing not to bring an action under this section.

(b)

(1) Except to the degree it may be considered by the court under § 62-5-

705(3), the fact that a person has paid or agreed to pay for all or part of the

funeral arrangements and final disposition does not give that person a greater

right to the right of disposition than the person would otherwise have.

(2) The personal representative of the estate of the decedent does not,

by virtue of being the personal representative, have a greater claim to the right of

disposition than the person would otherwise have.

62-5-707. Any person signing a funeral service agreement, cremation authorization

form, or any other authorization for disposition shall be deemed to warrant the truthfulness of

any facts set forth therein, including the identity of the decedent whose remains are to be

buried, cremated, or otherwise disposed of, and the party’s authority to order such disposition.

A funeral establishment shall have the right to rely on such funeral service contract or

authorization and shall have the authority to carry out the instructions of the person whom the

funeral establishment reasonably believes holds the right of disposition. No funeral

establishment is responsible for contacting or independently investigating the existence of any

next-of-kin or relative of the decedent. If there is more than one (1) person in a class who are

equal in priority pursuant to § 62-5-703 and the funeral establishment has no knowledge of any

objection by other members of such class, the funeral establishment may rely on and act

according to the instructions of the first such person in the class to make funeral and disposition

arrangements; provided, that no other person in such class provides written notice of objections

to the funeral establishment.

62-5-708. No funeral establishment or funeral director who relies in good faith upon the

instructions of a person claiming the right of disposition shall be subject to criminal or civil

liability or subject to disciplinary action for carrying out the disposition of the remains in

accordance with the instructions unless the funeral establishment or funeral director knew or

had reason to know that the person did not have the right of disposition.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring

it.