Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1470 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 2984 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1470
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Daniel M. Donahue
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act designating right of disposition.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Daniel M. Donahue16th Worcester1/19/2023 1 of 8
16	16	HOUSE DOCKET, NO. 2984 FILED ON: 1/19/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 1470
18	18	By Representative Donahue of Worcester, a petition (accompanied by bill, House, No. 1470) of
19	19	Daniel M. Donahue relative to certain funeral service contracts. The Judiciary.
20	20	The Commonwealth of Massachusetts
21	21	_______________
22	22	In the One Hundred and Ninety-Third General Court
23	23	(2023-2024)
24	24	_______________
25	25	An Act designating right of disposition.
26	26	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
27	27	of the same, as follows:
28	28	1 Title XVI
29	29	2 Chapter 115
30	30	3 Section 1. A person, who is 18 years of age or older and of sound mind, by entering into a
31	31	4pre-need funeral service contract as defined in 239 CMR 4.01 or by providing instructions in a
32	32	5written and sworn affidavit, may direct the location, manner and conditions of disposition of the
33	33	6person's remains, and the arrangements for funeral goods and services to be provided upon the
34	34	7person's death. The disposition directions and funeral prearrangements that are contained in a
35	35	8pre-need funeral services contract shall not be subject to cancellation or substantial revision
36	36	9unless the cancellation or substantial revision has been ordered by a person who the decedent has
37	37	10appointed in the pre-need funeral services contract as the person authorized to cancel or revise
38	38	11the terms of the pre-need funeral services contract, or unless any resources set aside to fund the
39	39	12pre-need funeral services contract are insufficient under the terms of the pre-need funeral 2 of 8
40	40	13services contract to carry out the disposition directions and funeral prearrangements contained
41	41	14therein.
42	42	15 Section 2. Except as set forth in Section (4), the right to control the disposition of the
43	43	16remains of a deceased person, the location, manner and conditions of disposition, and
44	44	17arrangements for funeral goods and services to be provided vests in the following in the order
45	45	18named, provided such person is 18 years or older and is of sound mind:
46	46	19 a)(1) A person designated by the decedent as the person with the right to control the
47	47	20disposition in an affidavit executed in accordance with Section 3; or (2) a person designated in
48	48	21the federal Record of Emergency Date Form DO 93, or its successor form, to have the right of
49	49	22disposition by a member of the military who dies while under active duty orders as described in
50	50	2310 U.S.C. 1481.
51	51	24 b)The surviving spouse.
52	52	25 c)The sole surviving child of the decedent, or if there is more than one child of the
53	53	26decedent, the majority of the surviving children. However, less than one-half of the surviving
54	54	27children shall be vested with the rights of this section if they have used reasonable efforts to
55	55	28notify all other surviving children of their instructions and are not aware of any opposition to
56	56	29those instructions on the part of more than one-half of all surviving children.
57	57	30 d)The surviving parent or parents of the decedent. If one of the surviving parents is
58	58	31absent, the remaining parent shall be vested with the rights and duties of this section after
59	59	32reasonable efforts have been unsuccessful in locating the absent surviving parent. 3 of 8
60	60	33 e)The surviving brother or sister of the decedent, or if there is more than one sibling of
61	61	34the decedent, the majority of the surviving siblings. However, less than the majority of surviving
62	62	35siblings shall be vested with the rights and duties of this section if they have used reasonable
63	63	36efforts to notify all other surviving siblings of their instructions and are not aware of any
64	64	37opposition to those instructions on the part of more than one-half of all surviving siblings.
65	65	38 f)The surviving grandparent of the decedent, or if there is more than one surviving
66	66	39grandparent, the majority of the grandparents. However, less than the majority of the surviving
67	67	40grandparents shall be vested with the rights and duties of this section if they have used
68	68	41reasonable efforts to notify all other surviving grandparents of their instructions and are not
69	69	42aware of any opposition to those instructions on the part of more than one-half of all surviving
70	70	43grandparents.
71	71	44 g)The guardian of the person of the decedent at the time of the decedent's death, if one
72	72	45had been appointed.
73	73	46 h)The personal representative of the estate of the decedent.
74	74	47 i)The person in the classes of the next degree of kinship, in descending order, under the
75	75	48laws of descent and distribution to inherit the estate of the decedent. If there is more than one
76	76	49person of the same degree, any person of that degree may exercise the right of disposition.
77	77	50 j)If the disposition of the remains of the decedent is the responsibility of the state or a
78	78	51political subdivision of the state, the public officer, administrator or employee responsible for
79	79	52arranging the final disposition of decedent's remains. 4 of 8
80	80	53 k)In the absence of any person under subsections (a) through (j) of this section, any other
81	81	54person willing to assume the responsibilities to act and arrange the final disposition of the
82	82	55decedent's remains, including the funeral director with custody of the body, after attesting in
83	83	56writing that a good faith effort has been made to no avail to contact the individuals under
84	84	57subsections (a) through (j) of this section.
85	85	58 Section 3. A person who is 18 years of age or older and of sound mind wishing to
86	86	59 authorize another person to control the disposition of his or her remains may execute an
87	87	60 affidavit before a notary public in substantially the following form:
88	88	61 "State of :----- }
89	89	62 County of ----- }
90	90	63 I, ---------------------------------do hereby designate ---------------------------with the right to
91	91	64control the disposition of my remains upon my death. I ______have/ ______have not
92	92	65 attached specific directions concerning the disposition of my remains which the designee
93	93	66shall substantially comply with, provided such directions are lawful and there are sufficient
94	94	67resources in my estate to carry out the directions.
95	95	68 Subscribed and sworn to before me this ______.day of the month of ______.of the
96	96	69 year ______.
97	97	70 ___________________ (signature of notary public)"
98	98	71 Section 4. A person entitled under law to the right of disposition shall forfeit that right, 5 of 8
99	99	72 and the right is passed on to the next qualifying person as listed in Section (2), in the
100	100	73 following circumstances:
101	101	74 a)Any person charged with first or second degree murder or voluntary manslaughter in
102	102	75connection with the decedent's death, and whose charges are known to the funeral director;
103	103	76provided, however that if the charges against such person are dismissed, or if such person is
104	104	77acquitted of the charges, the right of disposition is returned to the person.
105	105	78 b)Any person who does not exercise his or her right of disposition within two days of
106	106	79notification of the death of decedent or within three days of decedent's death, whichever is
107	107	80earlier.
108	108	81 c)If the person and the decedent are spouses and a petition to dissolve the marriage was
109	109	82pending at the time of decedent's death.
110	110	83 d)Where the probate court pursuant to Section (5) below determines that the person
111	111	84entitled to the right of disposition and the decedent were estranged at the time of death. For
112	112	85purposes of this subdivision, "estranged" means a physical and emotional separation from the
113	113	86decedent at the time of death which has existed for a period of time that clearly demonstrates an
114	114	87absence of due affection, trust and regard for the decedent.
115	115	88 Section 5. Notwithstanding the foregoing, the probate court for the county where the
116	116	89decedent resided may award the right of disposition to the person determined by the court to be
117	117	90the most fit and appropriate to carry out the right of disposition, and may make decisions
118	118	91regarding the decedent's remains if those sharing the right of disposition cannot agree. The
119	119	92following provisions shall apply to the court's determination under this section: 6 of 8
120	120	93 a)If the persons holding the right of disposition are two or more persons with the same
121	121	94relationship to the decedent, and they cannot, by majority vote, make a decision regarding the
122	122	95disposition of the decedent's remains, any of such persons or a funeral home with custody of the
123	123	96remains may file a petition asking the probate court to make a determination in the matter.
124	124	97 b)In making a determination under this Section, the probate court shall consider the
125	125	98following:
126	126	99 (1)The reasonableness and practicality of the proposed funeral arrangements and
127	127	100disposition.
128	128	101 (2)The degree of the personal relationship between the decedent and each of the persons
129	129	102claiming the right of disposition.
130	130	103 (3)The desires of the person or persons who are ready, able and willing to pay the cost of
131	131	104the funeral arrangements and disposition.
132	132	105 (4)The convenience and needs of other families and friends wishing to pay respects.
133	133	106 (5)The desires of the decedent.
134	134	107 (6)The degree to which the funeral arrangements would allow maximum participation by
135	135	108all wishing to pay respect.
136	136	109 c)In the event of a dispute regarding the right of disposition, a funeral home is not liable
137	137	110for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent
138	138	111or complete the arrangements for the final disposition of the remains until the funeral home
139	139	112receives a court order or other written agreement signed by the parties in the disagreement that
140	140	113decides the final disposition of the remains. If the funeral home retains the remains for final 7 of 8
141	141	114disposition while the parties are in disagreement, the funeral home may embalm or refrigerate
142	142	115and shelter the body, or both, in order to preserve it while awaiting the final decision of the
143	143	116probate court and may add the cost of embalming and refrigeration and sheltering to the final
144	144	117disposition costs. If a funeral home brings an action under this section, the funeral home may add
145	145	118the legal fees and court costs associated with a petition under this section to the cost of final
146	146	119disposition. This section may not be construed to require or to impose a duty upon a funeral
147	147	120home to bring an action under this section. A funeral home and its employees may not be held
148	148	121criminally or civilly liable for choosing not to bring an action under this section.
149	149	122 d)Except to the degree it may be considered by the probate court under clause (b)(3) of
150	150	123Section 4 above, the fact that a person has paid or agreed to pay for all or part of the funeral
151	151	124arrangements and final disposition does not give that person a greater right to the right of
152	152	125disposition than the person would otherwise have. The personal representative of the estate of the
153	153	126decedent does not, by virtue of being the personal representative, have a greater claim to the right
154	154	127of disposition than the person would otherwise have.
155	155	128 Section 6. Any person signing a funeral service agreement, cremation authorization form,
156	156	129or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts
157	157	130set forth therein, including the identity of the decedent whose remains are to be buried, cremated,
158	158	131or otherwise disposed of, and the party's authority to order such disposition. A funeral home shall
159	159	132have the right to rely on such funeral service contract or authorization and shall have the
160	160	133authority to carry out the instructions of the person or persons whom the funeral home
161	161	134reasonably believes holds the right of disposition. The funeral home shall have no responsibility
162	162	135to contact or to independently investigate the existence of any next-of-kin or relative of the
163	163	136decedent. If there is more than one person in a class who are equal in priority and the funeral 8 of 8
164	164	137home has no knowledge of any objection by other members of such class, the funeral home shall
165	165	138be entitled to rely on and act according to the instructions of the first such person in the class to
166	166	139make funeral and disposition arrangements; provided that no other person in such class provides
167	167	140written notice of his or her objections to the funeral home.
168	168	141 Section 7. No funeral home or funeral director who relies in good faith upon the
169	169	142instructions of an individual claiming the right of disposition shall be subject to criminal or civil
170	170	143liability or subject to disciplinary action for carrying out the disposition of the remains in
171	171	144accordance with the instructions.