Beyond The Grave: Legal Insights Into Your Final Wishes (Part 1)

Introduction

Planning for the end of life isn’t only about wills, trusts, or dividing property – it’s about making sure your wishes are honored, and your loved ones aren’t left with difficult decisions. Beyond The Grave: Legal Insights Into Your Final Wishes is a series designed to explore the legal and practical aspects of final arrangements, offering information for those navigating these sensitive matters. In this first installment, we’ll focus on a critical, but often overlooked, question – who has the right to decide what happens to your body after death?

Consider this scenario: Dalton passes away unexpectedly and never wrote down his final wishes or consulted an attorney to create an estate plan. However, during his life, he casually conveyed to others that cremation was his preferred method of burial. After his death, his spouse insists on burial in the family plot. However, his children argue that their father always wanted cremation. Tensions rise, emotions flare, and the funeral home won’t move forward until the family resolves the dispute. Without clear instructions from Dalton, Oklahoma law – not family memory or preferences – could decide who gets the final word.

 

Disposition Hierarchy

Oklahoma law provides the framework for those who have the right to control the disposition of a deceased person’s remains when no instruction is left behind, offering a clear hierarchy to guide families and funeral providers. To possess the right to control the disposition of bodily remains, a person must be eighteen years of age or older and of sound mind. In addition, this framework covers the location, manner, and conditions of disposition, as well as arrangement for funeral goods and services.

Aside from the prerequisite provided by statute, the hierarchy provided in 21 O.S. § 1158 is both exhaustive and clear. First, the deceased person has the authority to dispose of their remains if they executed a pre-need funeral contract or other written document meeting state requirements. If no such document exists, a representative appointed by the decedent in a valid written document takes priority.

Next in line is the surviving spouse, followed by the sole surviving adult child — or, if there are multiple adult children, the majority of them. If no children are available, responsibility passes to the surviving parents, then to adult siblings, or a majority of them if there are multiple siblings.

If none of these relatives are available, the guardian of the decedent (if one had been appointed) or other next-of-kin under state inheritance laws may act. In cases where the decedent is indigent or the state bears financial responsibility, the public officer or employee in charge of arranging disposition takes control. Finally, if no one in these categories is available, any other willing person — including the personal representative of the estate or the funeral director with custody of the body — may step in after demonstrating a good-faith effort to contact the individuals listed above.

Of special note, a person who is otherwise entitled to control the disposition of a decedent’s body can lose that right under certain circumstances, as described in 21 O.S. § 1151a, with authority then passing to the next qualifying person. The right to control the disposition of bodily remains is forfeited if the person is charged with first or second-degree murder or voluntary manslaughter in connection with the decedent’s death, so long as those charges are known to the funeral director. However, if the charges are later dropped or the individual is acquitted, the right is restored. The right is also forfeited if the person fails to exercise it within three days of being notified of the death or within five days of the death itself, whichever comes first. Finally, a district court may revoke the right if it determines that the person and the decedent were estranged at the time of death — meaning there was a clear physical and emotional separation marked by an absence of affection, trust, and regard.

While Oklahoma law provides a clear hierarchy for who may control the disposition of a deceased person’s remains, it is important to reiterate: the decedent’s own directions take precedence. Under 21 O.S. § 1151, any person has the right to determine how their body — or any part separated during their lifetime — will be disposed of after death. This right can also be formally assigned to another individual through a sworn affidavit, granting them authority to carry out the decedent’s wishes. For service members who completed the Department of Defense Record of Emergency Data (DD Form 93), the designated person on that form may control funeral and disposition arrangements, including cremation.

This underscores a fundamental principle in Oklahoma law: the decedent’s expressed wishes always take precedence, and the statutory hierarchy of authority only applies when no such directions exist.

 

Right to Decent Burial

While determining who has the right to make final decisions is essential, Oklahoma law also recognizes that this authority comes with a corresponding duty — the obligation to ensure the decedent receives a decent and respectful burial. This principle, often referred to as the “right to a decent burial,” reflects society’s interest in the proper handling of human remains and underscores that the disposition of a body is not only a matter of personal choice, but also one of legal and moral responsibility. Under 21 O.S. § 1152, “except in the cases in which a right to dissect a dead body is expressly conferred by law, every dead body of a human being must be decently buried within a reasonable time after death.” This means that once the proper individual has the right to control disposition, they must ensure the body is laid to rest respectfully and without unnecessary delay.

Related to the right of decent burial, Oklahoma law also protects the integrity and dignity of human remains. The desecration of a corpse — which includes dismemberment, disfigurement, mutilation, burning, or any act intended to scatter, dissipate, or dishonor the body — is strictly prohibited under 21 O.S. § 1161.1. At the same time, the law allows for necessary and lawful procedures, such as autopsies, forensic examinations, cremation or burial, organ donation, and the use of cadavers for medical education, ensuring that investigative, medical, and educational needs are met without violating the decedent’s dignity.

Oklahoma law further forbids the unauthorized removal or interference with human remains, as set forth in 21 O.S. § 1161. A body or any part of it may not be moved from its original location without proper authorization from a district attorney or medical examiner, and no part of a body may be taken from a grave or temporary resting place for sale, dissection without legal authority, or out of ill will  or recklessness. Burial containers are likewise protected from willful or malicious damage. Violations of these provisions are considered felonies, punishable by fines, imprisonment, or both, emphasizing that Oklahoma law treats the respectful handling of human remains as both a moral and legal obligation.

 

Conclusion

Navigating the legal landscape surrounding the disposition of a deceased person’s remains can be complex, but understanding the law provided in Oklahoma allows for clarity and guidance for both families and professionals. From the hierarchy of authority and the decedent’s right to direct their own arrangements, to from the obligation of a decent burial and the strict prohibitions against desecration and unauthorized interference, the law establishes a framework designed to protect the dignity of the deceased while minimizing disputes among loved ones.

Ultimately, the key takeaway is that planning ahead and documenting your wishes is the surest way to ensure they are honored. When clear directions exist, Oklahoma law defers to the decedent’s expressed intentions; when they do not, the statutes provide a detailed roadmap for who holds the authority and the responsibilities that come with it. By understanding these rules, families, attorneys, and funeral professionals can work together to carry out final wishes with respect, legality, and peace of mind.

In the next installment of Beyond The Grave: Legal Insights Into Your Final Wishes, we will explore the various disposition options available in Oklahoma, including burial, cremation, and emerging alternatives. We will discuss the legal requirements, costs, and considerations associated with each option, providing insights to help individuals make informed decisions that align with their personal values and circumstances.