30-2223. Right of disposition of remains and funeral arrangements; powers and duties; petition filed with court; considerations; court order.

(1) Except as otherwise provided by section 23-1824, a person who is eighteen years of age or older and of sound mind, by testamentary disposition, by entering into a pre-need sale as defined by section 12-1102, or by affidavit as provided in subdivision (2)(a)(ii) of this section, may direct the location, manner, and conditions of disposition of his or her remains and the arrangements for funeral goods and services to be provided upon his or her death.

(2) Except as set forth in subsection (3) of this section or in section 71-20,121, the right of disposition, including the right to control the disposition of the remains of a deceased person, the location, manner, and conditions of disposition, and the arrangements for funeral goods and services to be provided, vests in the following order if the person listed is eighteen years of age or older and is of sound mind:

(a)(i) A person designated by the decedent as the person with the right of disposition in an affidavit executed in accordance with subdivision (2)(a)(ii) of this section.

(ii) A person who is eighteen years of age or older and of sound mind wishing to convey the right of disposition to another person may execute an affidavit before a notary public in substantially the following form:

State of .......... )

County of .......... )

I, .............., do hereby designate .............. with the right to control the disposition of my remains upon my death. I (...... have) (...... have not) attached specific directions concerning the disposition of my remains which the designee shall substantially comply with, so long as such directions are lawful and there are sufficient resources in my estate to carry out the directions. This affidavit does not constitute a durable power of attorney for health care.

......................... (signature of person executing affidavit)

Subscribed and sworn to before me this ...... day of the month of ............ of the year ...... .

......................... (signature of notary public);

(b) The surviving spouse of the decedent;

(c) The sole surviving child of the decedent or, if there is more than one child of the decedent, the majority of the surviving children, except that less than a majority of the surviving children shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving children of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving children;

(d) The surviving parent or parents of the decedent. If one of the surviving parents is absent, the remaining parent shall be vested with the right of disposition after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(e) The surviving brother or sister of the decedent or, if there is more than one sibling of the decedent, the majority of the surviving siblings, except that less than the majority of the surviving siblings shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving siblings of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving siblings;

(f) The surviving grandparent of the decedent or, if there is more than one surviving grandparent, the majority of the grandparents, except that less than the majority of the surviving grandparents shall be vested with the right of disposition if they have used reasonable efforts to notify all other surviving grandparents of their instructions regarding the right of disposition and are not aware of any opposition to those instructions on the part of a majority of the surviving grandparents;

(g) The person in 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 person of the same degree, any person of that degree may exercise the right of disposition;

(h) The guardian of the person of the decedent at the time of the decedent's death, if one had been appointed;

(i) The personal representative of the estate of the decedent. The powers and duties under this section of the personal representative shall commence upon his or her appointment. Such powers and duties of the personal representative shall relate back in time to give acts by the personal representative which are beneficial to the disposition of the decedent's remains occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, the personal representative may carry out written instructions of the decedent relating to his or her body, funeral, and burial arrangements. The personal representative may also ratify and accept acts regarding disposition of the decedent's remains done by others where the acts would have been proper for the personal representative;

(j) The State Anatomical Board or the county board of the county where the death occurred in the case of an indigent person or any other person the disposition of whose remains is a responsibility of the state or county;

(k) A representative as described in section 38-1426 or 38-1427 that has arranged with the funeral establishment, cemetery, or crematory authority to cremate or bury a body part in the case of body parts received from the entity described in section 38-1426 or 38-1427; and

(l) In the absence of any person listed in subdivisions (2)(a) through (k) of this section, any other person willing to assume the right of disposition, 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 persons listed in subdivisions (2)(a) through (k) of this section.

(3) A person entitled under this section to the right of disposition shall forfeit that right and the right is passed on to the next qualifying person as listed in subdivisions (2)(a) through (l) of this section in the following circumstances:

(a) Any person charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death and whose charges are known to the funeral director. If the charges against such person are dismissed, or if such person is acquitted of the charges, the right of disposition is returned to such person;

(b) Any person who does not exercise his or her right of disposition within three days after notification of the death of the decedent or within four days after the decedent's death, whichever is earlier;

(c) 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; or

(d) If a county court pursuant to subsection (4) of this section determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this subdivision, estranged means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of due affection, trust, and regard for the decedent.

(4)(a) If two or more persons with the same relationship to the decedent hold the right of disposition and cannot by majority vote make a decision regarding the disposition of the decedent's remains, any of such persons or a funeral home with custody of the remains may file a petition asking the court to make a determination in the matter.

(b) Notwithstanding subsections (1) through (3) of this section, the county court of the county where the decedent died 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.

(c) In making a determination under this subsection, the court shall consider the following:

(i) The reasonableness and practicality of the proposed funeral arrangements and disposition;

(ii) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;

(iii) The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition; and

(iv) The convenience and needs of other families and friends wishing to pay respects.

(d) In the event of a dispute regarding the right of disposition, a funeral establishment, cemetery, or crematory authority is not liable for refusing to accept the remains or to 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, cemetery, or crematory authority receives a court order or other written agreement signed by the parties in disagreement that decides the final disposition of the remains. If the funeral establishment, cemetery, or crematory authority 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 it while awaiting the final decision of the court and may add the cost of embalming or refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this subsection, the funeral establishment, cemetery, or crematory authority may add the legal fees and court costs associated with a petition under this subsection to the cost of final disposition. This subsection may not be construed to require or to impose a duty upon a funeral establishment, cemetery, or crematory authority to bring an action under this subsection.

(e) Except to the degree it may be considered by the court under subdivision (4)(c)(iii) of this section, 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 claim to the right of disposition than the person would otherwise have. 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 personal representative would otherwise have.

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