§ 5231. Civil action

(a) Any individual who is a near relative of the decedent or the custodian of the decedent's remains may file an action in the Probate Division of the Superior Court requesting the court to appoint an individual to make decisions regarding the disposition of the decedent's remains or to resolve a dispute regarding the appropriate disposition of remains, including any decisions regarding funeral goods and services. The court or the individual filing the action may move to join any necessary person under the jurisdiction of the court as a party. The Agency of Human Services may also be joined as a party if it is suggested on the record that there will be insufficient financial resources to pay for funeral goods and services.

(b) In making its decision, the court shall consider the following factors:

(1) the decedent's expressed directions or wishes;

(2) the decedent's religious affiliation or beliefs;

(3) the cost and practicality of the proposed arrangements and disposition and the ability of the responsible party or parties to pay for the proposed arrangements and disposition;

(4) the relationship between the decedent and any individual claiming the right of disposition, including whether the individual and the decedent were estranged;

(5) the wishes of any individual willing to pay the cost of the proposed arrangements and disposition;

(6) whether the proposed arrangements are inclusive of the desires of the family; and

(7) any other information the court, in its discretion, deems relevant.

(c) Except as provided for under subdivision (b)(4) of this section, an individual who has paid or agreed to pay for all or part of the funeral arrangements or final disposition does not have greater priority to the right to disposition than as set forth in section 5227 of this title.

(d)(1) A funeral director or crematory operator may refuse to accept bodily remains, to inter or otherwise dispose of bodily remains, or to complete the arrangements for the final disposition until such time as the court issues an order or the parties to the action submit a final stipulation approved by the court regarding the disposition of remains.

(2) If the funeral director or crematory operator retains the remains for final disposition while an action is pending, the funeral director or crematory operator may refrigerate or shelter the remains while awaiting a preliminary or final order of the court. The cost of refrigeration or sheltering shall be the responsibility of the party or parties who contracted with the funeral director or crematory operator, the person or entity who is otherwise liable for the costs of final disposition, or the estate as ordered by the court, or any combination of these, and the court may include in the order a decision concerning which of these shall be responsible for paying these costs.

(e) If a funeral director or crematory operator commences an action under this section, the funeral director or crematory operator may ask the court to include an order against the estate or the parties for reasonable legal fees and costs. If the estate is insolvent and no other person should be responsible for the filing fee, the court may waive the filing fee. The court, in its discretion, may order a party or parties to pay the reasonable costs of final disposition as a condition of the appointment to make disposition decisions. The court may order that a party, or parties, including the petitioner, pay reasonable legal fees and costs associated with the action.

(f) Any appeal from the probate court shall be on the record to the Civil Division of the Superior Court. There shall be no appeal as a matter of right to the Supreme Court. (Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 148, eff. Feb. 1, 2011.)