Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S989 Compare Versions

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

Old	New	Differences
1	1	1 of 1
2	2	SENATE DOCKET, NO. 99 FILED ON: 1/10/2023
3	3	SENATE . . . . . . . . . . . . . . No. 989
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Anne M. Gobi
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 establishing the right of disposition.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Anne M. GobiWorcester and Hampshire 1 of 8
16	16	SENATE DOCKET, NO. 99 FILED ON: 1/10/2023
17	17	SENATE . . . . . . . . . . . . . . No. 989
18	18	By Ms. Gobi, a petition (accompanied by bill, Senate, No. 989) of Anne M. Gobi for legislation
19	19	to establish the right of disposition. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 1053 OF 2021-2022.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Third General Court
25	25	(2023-2024)
26	26	_______________
27	27	An Act establishing the right of disposition.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Title XVI of the General Laws is hereby amended by inserting after section
31	31	2114 the following Chapter:-
32	32	3 Chapter 114A: Right of Disposition
33	33	4 Section 1. For purposes of this chapter the following words shall, unless the context
34	34	5clearly indicates otherwise, have the following meanings:-
35	35	6 “Buyer”, the person entering into a Pre-Need Funeral Contract with a Licensed Funeral
36	36	7Establishment. 2 of 8
37	37	8 “Estranged”, a physical or emotional separation from the decedent at the time of death
38	38	9which has existed for a period of time that clearly demonstrates an absence of due affection, trust
39	39	10and regard for the decedent.
40	40	11 “Funeral Goods and/or Services”, those goods and services which are customarily
41	41	12provided in the business of embalming and funeral directing, as commonly practiced, as
42	42	13determined by the Department of Public Health.
43	43	14 “Licensed Funeral Establishment”, a fixed place or establishment privately owned or
44	44	15maintained by a person, partnership, corporation, association, or other organization which has
45	45	16been duly registered by the Board pursuant to Section 83 of Chapter 112 and which is located,
46	46	17constructed, equipped and operated for the purpose of providing sanitary handling, preparation,
47	47	18disposition and care of dead human bodies.
48	48	19 “Pre-need funeral contract”, any written agreement between a Buyer and a Licensed
49	49	20Funeral Establishment in which the Licensed Funeral Establishment agrees, prior to the death of
50	50	21an unnamed Beneficiary to furnish Funeral Goods and/or Services for that named Beneficiary
51	51	22upon their death and the Buyer, pursuant to that agreement, tenders funds made payable to a
52	52	23banking institution or insurance company to the Licensed Funeral Establishment for the purpose
53	53	24of paying all or part of the cost of those Funeral Goods and/or Services at the time they are
54	54	25actually provided.
55	55	26 Section 2. A person by entering into a Pre-Need Funeral Service Contract or by providing
56	56	27instructions in a written and sworn affidavit as defined in Section 4, may direct the location,
57	57	28manner and conditions of disposition of the person’s remains, and the arrangements for funeral
58	58	29goods and/or services to be provided upon the person’s death. The instructions that are contained 3 of 8
59	59	30in a Pre-Need Funeral Services Contract shall not be subject to cancellation or substantial
60	60	31revision unless the cancellation or substantial revision has been ordered by a person who the
61	61	32decedent has appointed in the Pre-Need Funeral Services Contract as the person authorized to
62	62	33cancel or revise the terms of the Pre-Need Funeral Services Contract, or unless any resources set
63	63	34aside to fund the Pre-Need Funeral Services Contract are insufficient under the terms of the Pre-
64	64	35Need Funeral Services Contract to carry out the instructions contained therein.
65	65	36 Section 3. Except as set forth in Section 5, the right to control the disposition of the
66	66	37remains of a deceased person, the location, manner and conditions of disposition, and
67	67	38arrangements for funeral goods and services to be provided vests in the following in the order
68	68	39named, provided such person is 18 years or older:
69	69	40 (a)(1) A Person designated by the decent as the person with the right to control the
70	70	41disposition in an affidavit executed in accordance with Section 4; or (2) a person designated in
71	71	42the Federal Record of Emergency Data Form DD3, or its successor form, to have the right of
72	72	43disposition by a member of the military who dies while under active duty orders as described in
73	73	4410 U.S.C § 1481
74	74	45 (b) The surviving spouse
75	75	46 (c)(1) The sole surviving child of the decedent; or (2) the majority of the surviving
76	76	47children; or (3) less than one-half of the surviving children if they have used reasonable efforts to
77	77	48notify all other surviving children of their instructions and are not aware of any opposition to
78	78	49those instructions on the part of more than one-half of all surviving children
79	79	50 (d)(1) The surviving parents of the decedent; or (2) one of the surviving parents if all
80	80	51other reasonable efforts have been unsuccessful in locating the absent surviving parent 4 of 8
81	81	52 (e)(1) The surviving sibling of the decedent; or (2) the majority of the surviving siblings;
82	82	53or (3) less than one-half of the surviving siblings if they have used reasonable efforts to notify all
83	83	54other surviving siblings of their instructions and are not aware of any opposition to those
84	84	55instructions on the part of more than one-half of all surviving siblings
85	85	56 (f)(1) The surviving grandparent of the decedent; or (2) the majority of the surviving
86	86	57grandparents; or (3) less than one-half of the surviving grandparents if they have used reasonable
87	87	58efforts to notify all other surviving grandparents of their instructions and are not aware of any
88	88	59opposition to those instructions on the part of more than one-half of all surviving grandparents
89	89	60 (g) The guardian of the decedent at the time of the decedent’s death, if one had been
90	90	61appointed
91	91	62 (h) The personal representative of the estate of the decedent
92	92	63 (i) The decedent’s next of kin in equal degree; but if there are 2 or more descendants of
93	93	64deceased ancestors in equal degree claiming through different ancestors, those claiming through
94	94	65the nearest ancestor shall be preferred to those claiming through an ancestor more remote.
95	95	66Degrees of kindred shall be computed according to the rules of civil law.
96	96	67 (j) If the disposition of the remains of the decedent is the responsibility of the state or a
97	97	68political subdivision of the state, the public officer, administrator or employee responsible for
98	98	69arranging the final disposition of the decedent’s remains
99	99	70 (k) In the absence of any person under subsections (a) through (j) of this section, any
100	100	71other person willing to assume the responsibilities to act and arrange the final disposition of the
101	101	72decedent’s remains, including the funeral director with custody of the body, after attesting in 5 of 8
102	102	73writing that a good faith effort has been made to no avail to contact the individuals under
103	103	74subsections (a) through (j) of this section
104	104	75 Section 4. A person who is 18 years of age or older wishing to authorize another person
105	105	76to control the disposition of his or her remains may execute an affidavit before a notary public
106	106	77containing the following information:
107	107	78 (1) The name and date of birth of the person releasing control of his or her remains
108	108	79 (2) The name, address, and telephone number of the person being authorized to assume
109	109	80control of the remains
110	110	81 (3) An affirmation by the authorized party that they are willing to carry forth the request
111	111	82 Section 5. A person entitled under law to the right of disposition shall forfeit that right,
112	112	83which shall be passed on to the next qualifying party pursuant to Section 3 in the following
113	113	84circumstances:
114	114	85 (a) Should they be charged with first or second degree murder or voluntary manslaughter
115	115	86in connection with the decedent’s death, and where their charges are known to the funeral
116	116	87director; provided, that if the charges against such person are dismissed, or if such person is
117	117	88acquitted of the charges, the right of disposition shall be returned to the party
118	118	89 (b) Should they not execute their right of disposition within the earlier of (1) two days of
119	119	90notification of the death of decedent; or (2) three days of the decedent’s death
120	120	91 (c) Should they be a legal spouse of the decedent who had a pending petition to dissolve
121	121	92the union at the time of the death 6 of 8
122	122	93 (d) Should the probate court pursuant to Section 6 determine that the person entitled to
123	123	94the right of disposition and the decedent were estranged at the time of death
124	124	95 Section 6. Notwithstanding Sections 1 through 5 of this Chapter, the probate court for the
125	125	96county where the decedent resided may award the right of disposition to the person determined
126	126	97by the court to be the most fit and appropriate to carry out the right of disposition, and may make
127	127	98decisions regarding the decedent’s remains if those sharing the right of disposition cannot agree.
128	128	99The following provisions shall apply to the court’s determination under this section:
129	129	100 (a) If the party holding the right of disposition is comprised of two or more persons with
130	130	101the same relationship to the decedent and they cannot, by majority vote, make a decision
131	131	102regarding the disposition of the decedent’s remains, any of such persons or a funeral home with
132	132	103custody of the remains may file a petition asking the probate court to make a determination in the
133	133	104matter.
134	134	105 (b) In making a determination under this Section, the probate court shall consider the
135	135	106following:
136	136	107 (1) The reasonableness and practicality of the proposed funeral arrangements and
137	137	108disposition
138	138	109 (2) The degree of the personal relationship between the decedent and the party claiming
139	139	110the right of disposition
140	140	111 (3) The desires of the party ready, willing, and able to pay the cost of the funeral
141	141	112arrangements and disposition
142	142	113 (4) The desires of the decedent; and 7 of 8
143	143	114 (5) The degree to which the funeral arrangements would allow maximum participation by
144	144	115all wishing to pay respect
145	145	116 (c) In the event of a dispute regarding the right of disposition, a funeral home is not liable
146	146	117for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent
147	147	118or complete the arrangements for the final disposition of the remains until the funeral home
148	148	119receives a court order or other written agreement signed by the parties in the disagreement that
149	149	120decides the final disposition of the remains. If the funeral home retains the remains for the final
150	150	121disposition while the parties are in disagreement, the funeral home may embalm or refrigerate
151	151	122and shelter the body, or both, in order to preserve it while awaiting the final decision of the
152	152	123probate court and may add the cost of embalming and refrigeration and sheltering to the final
153	153	124disposition costs. If a funeral home brings an action under this section, the funeral home may add
154	154	125the legal fees and court costs associated with a petition under this section to the cost of final
155	155	126disposition. This section may not be construed to require or to impose a duty upon a funeral
156	156	127home to bring an action under this section. A funeral home and its employees may not be held
157	157	128criminally or civilly liable for choosing not to bring an action under this section.
158	158	129 (d) Except to the degree to which it may be considered by the probate court under
159	159	130subsection (b) of Section 5 of this Chapter, the fact that a person has paid or agreed to pay for all
160	160	131or part of the funeral arrangements and final disposition does not give that person a greater right
161	161	132to the right of disposition than the person would otherwise have. The personal representative of
162	162	133the estate of the decedent does not, by virtue of being the personal representative, have a greater
163	163	134claim to the right of disposition than the person would have otherwise. 8 of 8
164	164	135 Section 7. Any person signing a funeral service agreement, cremation authorization form,
165	165	136or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts
166	166	137set forth therein, including the identity of the decedent whose remains are to be buried, cremated,
167	167	138or otherwise disposed of, and the party’s authority to order such a disposition. A funeral home
168	168	139shall have the right to rely on such funeral service contract or authorization and shall have the
169	169	140authority to carry out the instructions of the person or persons whom the funeral home
170	170	141reasonable believes holds the right of disposition. The funeral home shall have no responsibility
171	171	142to contact or to independently investigate the existence of any next-of-kin or relative of the
172	172	143decedent. If there is more than one person in a class who are equal in priority and the funeral
173	173	144home has no knowledge of any objection by other members of such class, the funeral home shall
174	174	145be entitled to rely on and act according to the instructions of the first such person in the class to
175	175	146make funeral and disposition arrangements; provided that no other person in such class provides
176	176	147written notice of his or her objections to the funeral home.
177	177	148 Section 8. No funeral home or funeral director who relies in good faith upon the
178	178	149instructions of an individual claiming the right of disposition shall be subject to criminal or civil
179	179	150liability or subject to disciplinary action for carrying out the disposition of the remains in
180	180	151accordance with the instructions.