Massachusetts 2025-2026 Regular Session

Massachusetts Senate Bill S1217 Compare Versions

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

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 402 FILED ON: 1/13/2025
3	3	SENATE . . . . . . . . . . . . . . No. 1217
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Patrick M. O'Connor
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 :Patrick M. O'ConnorFirst Plymouth and NorfolkJoseph D. McKenna18th Worcester1/21/2025 1 of 8
16	16	SENATE DOCKET, NO. 402 FILED ON: 1/13/2025
17	17	SENATE . . . . . . . . . . . . . . No. 1217
18	18	By Mr. O'Connor, a petition (accompanied by bill, Senate, No. 1217) of Patrick M. O'Connor
19	19	and Joseph D. McKenna for legislation to designate the right of disposition of human remains.
20	20	The Judiciary.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Fourth General Court
24	24	(2025-2026)
25	25	_______________
26	26	An Act designating right of disposition.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. A person, who is 18 years of age or older and of sound mind, by entering
30	30	2into a pre-need funeral service contract as defined in 239 CMR 4.01 or by providing instructions
31	31	3in a written and sworn affidavit, may direct the location, manner and conditions of disposition of
32	32	4the person's remains, and the arrangements for funeral goods and services to be provided upon
33	33	5the person's death. The disposition directions and funeral prearrangements that are contained in a
34	34	6pre-need funeral services contract shall not be subject to cancellation or substantial revision
35	35	7unless the cancellation or substantial revision has been ordered by a person who the decedent has
36	36	8appointed in the pre-need funeral services contract as the person authorized to cancel or revise
37	37	9the terms of the pre-need funeral services contract, or unless any resources set aside to fund the
38	38	10pre-need funeral services contract are insufficient under the terms of the pre-need funeral
39	39	11services contract to carry out the disposition directions and funeral prearrangements contained
40	40	12therein. 2 of 8
41	41	13 SECTION 2. Except as set forth in Section (4), the right to control the disposition of the
42	42	14remains of a deceased person, the location, manner and conditions of disposition, and
43	43	15arrangements for funeral goods and services to be provided vests in the following in the order
44	44	16named, provided such person is 18 years or older and is of sound mind:
45	45	17 a) (1) A person designated by the decedent as the person with the right to control the
46	46	18disposition in an affidavit executed in accordance with Section 3; or (2) a person designated in
47	47	19the federal Record of Emergency Date Form DO 93, or its successor form, to have the right of
48	48	20disposition by a member of the military who dies while under active duty orders as described in
49	49	2110 U.S.C. 1481.
50	50	22 b) The surviving spouse.
51	51	23 c) The sole surviving child of the decedent, or if there is more than one child of the
52	52	24decedent, the majority of the surviving children. However, less than one-half of the surviving
53	53	25children shall be vested with the rights of this section if they have used reasonable efforts to
54	54	26notify all other surviving children of their instructions and are not aware of any opposition to
55	55	27those instructions on the part of more than one-half of all surviving children.
56	56	28 d) The surviving parent or parents of the decedent. If one of the surviving parents is
57	57	29absent, the remaining parent shall be vested with the rights and duties of this section after
58	58	30reasonable efforts have been unsuccessful in locating the absent surviving parent.
59	59	31 e) The surviving brother or sister of the decedent, or if there is more than one sibling of
60	60	32the decedent, the majority of the surviving siblings. However, less than the majority of surviving
61	61	33siblings shall be vested with the rights and duties of this section if they have used reasonable 3 of 8
62	62	34efforts to notify all other surviving siblings of their instructions and are not aware of any
63	63	35opposition to those instructions on the part of more than one-half of all surviving siblings.
64	64	36 f) The surviving grandparent of the decedent, or if there is more than one surviving
65	65	37grandparent, the majority of the grandparents. However, less than the majority of the surviving
66	66	38grandparents shall be vested with the rights and duties of this section if they have used
67	67	39reasonable efforts to notify all other surviving grandparents of their instructions and are not
68	68	40aware of any opposition to those instructions on the part of more than one-half of all surviving
69	69	41grandparents.
70	70	42 g) The guardian of the person of the decedent at the time of the decedent's death, if one
71	71	43had been appointed.
72	72	44 h) The personal representative of the estate of the decedent.
73	73	45 i) The person in the classes of the next degree of kinship, in descending order, under the
74	74	46laws of descent and distribution to inherit the estate of the decedent. If there is more than one
75	75	47person of the same degree, any person of that degree may exercise the right of disposition.
76	76	48 j) If the disposition of the remains of the decedent is the responsibility of the state or a
77	77	49political subdivision of the state, the public officer, administrator or employee responsible for
78	78	50arranging the final disposition of decedent's remains.
79	79	51 k) In the absence of any person under subsections (a) through (j) of this section, any other
80	80	52person willing to assume the responsibilities to act and arrange the final disposition of the
81	81	53decedent's remains, including the funeral director with custody of the body, after attesting in 4 of 8
82	82	54writing that a good faith effort has been made to no avail to contact the individuals under
83	83	55subsections (a) through (j) of this section.
84	84	56 SECTION 3. A person who is 18 years of age or older and of sound mind wishing to
85	85	57authorize another person to control the disposition of his or her remains may execute an affidavit
86	86	58before a notary public in substantially the following form:
87	87	59 "State of :----- }
88	88	60 County of ----- }
89	89	61 I, ---------------------------------do hereby designate ---------------------------with the right to
90	90	62control the disposition of my remains upon my death. I ______have/ ______have not
91	91	63 attached specific directions concerning the disposition of my remains which the designee
92	92	64shall substantially comply with, provided such directions are lawful and there are sufficient
93	93	65resources in my estate to carry out the directions.
94	94	66 Subscribed and sworn to before me this ______.day of the month of ______.of the
95	95	67 year ______.
96	96	68 ___________________ (signature of notary public)"
97	97	69 SECTION 4. A person entitled under law to the right of disposition shall forfeit that right,
98	98	70and the right is passed on to the next qualifying person as listed in Section (2), in the following
99	99	71circumstances:
100	100	72 a) Any person charged with first or second degree murder or voluntary manslaughter in
101	101	73connection with the decedent's death, and whose charges are known to the funeral director; 5 of 8
102	102	74provided, however that if the charges against such person are dismissed, or if such person is
103	103	75acquitted of the charges, the right of disposition is returned to the person.
104	104	76 b) Any person who does not exercise his or her right of disposition within two days of
105	105	77notification of the death of decedent or within three days of decedent's death, whichever is
106	106	78earlier.
107	107	79 c) If the person and the decedent are spouses and a petition to dissolve the marriage was
108	108	80pending at the time of decedent's death.
109	109	81 d) Where the probate court pursuant to Section (5) below determines that the person
110	110	82entitled to the right of disposition and the decedent were estranged at the time of death. For
111	111	83purposes of this subdivision, "estranged" means a physical and emotional separation from the
112	112	84decedent at the time of death which has existed for a period of time that clearly demonstrates an
113	113	85absence of due affection, trust and regard for the decedent.
114	114	86 SECTION 5. Notwithstanding the foregoing, the probate court for the county where the
115	115	87decedent resided may award the right of disposition to the person determined by the court to be
116	116	88the most fit and appropriate to carry out the right of disposition, and may make decisions
117	117	89regarding the decedent's remains if those sharing the right of disposition cannot agree. The
118	118	90following provisions shall apply to the court's determination under this section:
119	119	91 a) If the persons holding the right of disposition are two or more persons with the same
120	120	92relationship to the decedent, and they cannot, by majority vote, make a decision regarding the
121	121	93disposition of the decedent's remains, any of such persons or a funeral home with custody of the
122	122	94remains may file a petition asking the probate court to make a determination in the matter. 6 of 8
123	123	95 b) In making a determination under this Section, the probate court shall consider the
124	124	96following:
125	125	97 (1) The reasonableness and practicality of the proposed funeral arrangements and
126	126	98disposition.
127	127	99 (2) The degree of the personal relationship between the decedent and each of the persons
128	128	100claiming the right of disposition.
129	129	101 (3) The desires of the person or persons who are ready, able and willing to pay the cost of
130	130	102the funeral arrangements and disposition.
131	131	103 (4) The convenience and needs of other families and friends wishing to pay respects.
132	132	104 (5) The desires of the decedent.
133	133	105 (6) The degree to which the funeral arrangements would allow maximum participation by
134	134	106all wishing to pay respect.
135	135	107 c) In the event of a dispute regarding the right of disposition, a funeral home is not liable
136	136	108for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent
137	137	109or complete the arrangements for the final disposition of the remains until the funeral home
138	138	110receives a court order or other written agreement signed by the parties in the disagreement that
139	139	111decides the final disposition of the remains. If the funeral home retains the remains for final
140	140	112disposition while the parties are in disagreement, the funeral home may embalm or refrigerate
141	141	113and shelter the body, or both, in order to preserve it while awaiting the final decision of the
142	142	114probate court and may add the cost of embalming and refrigeration and sheltering to the final
143	143	115disposition costs. If a funeral home brings an action under this section, the funeral home may add 7 of 8
144	144	116the legal fees and court costs associated with a petition under this section to the cost of final
145	145	117disposition. This section may not be construed to require or to impose a duty upon a funeral
146	146	118home to bring an action under this section. A funeral home and its employees may not be held
147	147	119criminally or civilly liable for choosing not to bring an action under this section.
148	148	120 d) Except to the degree it may be considered by the probate court under clause (b)(3) of
149	149	121Section 4 above, the fact that a person has paid or agreed to pay for all or part of the funeral
150	150	122arrangements and final disposition does not give that person a greater right to the right of
151	151	123disposition than the person would otherwise have. The personal representative of the estate of the
152	152	124decedent does not, by virtue of being the personal representative, have a greater claim to the right
153	153	125of disposition than the person would otherwise have.
154	154	126 SECTION 6. Any person signing a funeral service agreement, cremation authorization
155	155	127form, or any other authorization for disposition shall be deemed to warrant the truthfulness of
156	156	128any facts set forth therein, including the identity of the decedent whose remains are to be buried,
157	157	129cremated, or otherwise disposed of, and the party's authority to order such disposition. A funeral
158	158	130home shall have the right to rely on such funeral service contract or authorization and shall have
159	159	131the authority to carry out the instructions of the person or persons whom the funeral home
160	160	132reasonably believes holds the right of disposition. The funeral home shall have no responsibility
161	161	133to contact or to independently investigate the existence of any next-of-kin or relative of the
162	162	134decedent. If there is more than one person in a class who are equal in priority and the funeral
163	163	135home has no knowledge of any objection by other members of such class, the funeral home shall
164	164	136be entitled to rely on and act according to the instructions of the first such person in the class to
165	165	137make funeral and disposition arrangements; provided that no other person in such class provides
166	166	138written notice of his or her objections to the funeral home. 8 of 8
167	167	139 SECTION 7. No funeral home or funeral director who relies in good faith upon the
168	168	140instructions of an individual claiming the right of disposition shall be subject to criminal or civil
169	169	141liability or subject to disciplinary action for carrying out the disposition of the remains in
170	170	142accordance with the instructions.