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