Disposition of Human Remains: Custody, Authorization, and Priority of Rights
What the exam tests
Ohio's right-of-disposition statute (ORC Chapter 2108) sets who controls arrangement, burial, and cremation. The exam tests the priority ladder, the effect of a written declaration, and how a funeral director should respond to family conflict.
The priority ladder
Under the statute, the right passes in order, with each class taking only if no one in a higher class is available and willing:
- A person named in a valid written declaration executed by the decedent.
- The surviving spouse, unless a divorce or legal separation has terminated the marriage.
- Adult children, then the majority of them.
- Parents.
- Siblings.
- A guardian at the time of death.
- The next of kin under intestate succession.
- A personal representative or other person the statute designates.
Operating rules for the funeral home
- Obtain a signed authorization identifying the agent and the statutory basis for authority.
- Rely in good faith on a signed affidavit or declaration; the statute protects a provider who does so.
- A person who merely pays the bill, or who was named in an outdated document, has no priority.
- When two people at the same level disagree, the majority of that class decides; a true standoff may need a court order.
- The decedent's wishes expressed orally do not override the statutory agent.
Worked example
The decedent is survived by a second spouse and three adult children from a first marriage. The children demand cremation; the spouse wants burial. The spouse holds priority and directs disposition unless the decedent executed a declaration naming someone else. The provider documents the spouse's authorization and the children's objection.
Traps that cost marks
Assuming the eldest child controls; treating a divorced spouse as a surviving spouse; accepting direction from a friend or employer; and proceeding without a signed authorization when the family is in conflict.