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Estate Planning: Why You Need a Funeral Directive

Spouses often differ on funeral plans. Though it might ruffle some family feathers, you have to stand up for yourself in order to get what you want at your funeral. The state appoints your funeral director if you fail to take action yourself and in most states, your spouse has the right to make all funeral decisions.

A client recently asked me how he could force his wife to cremate him. He did not want his remains in the family plot. He wished for his friends to sprinkle his ashes in the ocean where he spent his time fishing and boating. Despite his request, his wife remained adamant that he be buried in the family plot, even going as far as promising to outlive him to do so. (For related reading, see: Estate Planning: 16 Things to Do Before You Die.)

Unfortunately, if a spouse doesn't intend to carry out your wishes or if they have other plans for your funeral, your requests will probably be ignored. While your family or friends can petition a court and attempt to have your wishes respected, this is an expensive and unpleasant undertaking. Further, your body might be cremated or buried before your loved ones can act on your behalf. Even if your friends were to take this step, if the only evidence they can present is what they heard you say, a judge might find this inadequate to counter your spouse’s wishes. How can you take action to make sure that you get the funeral that you want?

Use a Funeral Directive

Use a funeral directive to select the right person. Don't let the state decide for you. A funeral directive is a document in which you grant someone the legal authority to carry out your funeral plan. While this can be a stand-alone document, people typically include the directive in their will. The directive grants authority to arrange memorials, control the guest list and decide the manner in which you are laid to rest. You are not bound to select your spouse as funeral director. Choose a person with the fortitude to order your cremation despite any family objections. Know your family and plan around potential problems. In many cases, rather than fortitude, diplomatic skills are required to address various family members.

Have an experienced estate planning attorney document your wishes and grant your nominee adequate legal authority. If drafted properly, you might avoid unnecessary conflict and expensive litigation. (For related reading, see: Getting Started on Your Estate Plan.)

Paying for Your Funeral

Once you have signed a funeral directive, make sure you provide the funds necessary to carry out your plans. Don't put your heirs in the position of deciding between paying for your funeral or inheriting the money. Some heirs can't resist the temptation of spending your money on themselves rather than your funeral. Further, if you have something specific planned your funeral director must have access to adequate funds to pay your bill. Plan ahead so your memorial is exactly what you want, even if that's a party with top shelf liquor.

For example, let's say you own all your bank accounts, investments and real property jointly with your spouse or children. You have a funeral directive in your will. The directive gives your friend the authority to hold a large party at your favorite club to celebrate your life. But no funds pass through your will. Because the assets are jointly owned they pass outside your will directly to the surviving joint owners. This leaves no funds for your will. Under this scenario your party will go unfunded unless your child or spouse voluntarily pays the bill.

Using the cremation example from my client, in order for him to get his wish he must execute a funeral directive but also arrange his estate plan so funds are available. This will require careful planning between his estate planning lawyer and financial planner to secure funds for the cremation in case the wife refuses to pay.

A funeral directive should be part of an estate plan. Plan ahead, be realistic about your family and provide your estate planning team with the legal authority and funds necessary to carry out your wishes. (For more from this author, see: Will Your Power of Attorney Leave You Penniless?)