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BILL AS PASSED BY SENATE 2007-2008

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S.170

AN ACT RELATING TO THE RIGHTS OF FAMILY MEMBERS, FUNERAL DIRECTORS, AND CREMATORY OPERATORS CONCERNING THE DISPOSITION OF BODILY REMAINS AND FUNERAL GOODS AND SERVICES

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  18 V.S.A. chapter 107, subchapter 3 is added to read:

Subchapter 3.  Rights of Family Members and Other Interested Persons, Funeral Directors, and Crematory Operators

§ 5226.  Definitions

For purposes of this subchapter:

(1)  “Estranged” means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that demonstrates an absence of affection, trust, and regard for the decedent.

(2)  “Near relative” means the individuals listed in subdivisions 5227(a)(2) through (5) of this title.

(3)  “Right to disposition” means the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services.

§ 5227.  RIGHT TO DISPOSITION

(a)  If there is no written directive of the decedent, in the following order of priority, one or more competent adults shall have the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services:

(1)  an individual appointed to arrange for the disposition of decedent’s remains pursuant to chapter 231 (advance directives) of this title;

(2)  a surviving spouse, civil union partner, or reciprocal beneficiary, as defined in section 1302 of Title 15, of the decedent;

(3)  a sole surviving child of the decedent or a majority of the surviving children, except as provided for in subdivision (b)(1) of this section, provided that if the child is a minor, his or her interest may only be effected by a legal guardian appointed by the probate court;

(4)  in the case of a minor or a disabled adult, the custodial parent or the parent who had been providing the primary physical care of the decedent, and if not applicable, a sole surviving parent, or both parents, of the decedent or either parent as provided for in subdivision (b)(2) of this section;

(5)  a sole surviving sibling of the decedent or a majority of the surviving siblings except as provided for in subdivision (b)(3) of this section;

(6)  any other family member, in descending order of kinship under the laws of descent and distribution, except that if there is more than one family member of the same degree of relation, a majority of family members of that degree, except as provided in subdivision (b)(4) of this section, may exercise the right of disposition;

(7)  a guardian of the decedent at the time of death;

(8)  any other individual willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the representative of the decedent’s estate, after attesting in writing that a good faith but unsuccessful effort has been made to contact the individuals described in subdivisions (1) through (7) of this subsection or that those individuals have waived any interest in exercising their rights under this subchapter; or

(9)  the funeral director or crematory operator with custody of the body, after attesting in writing that a good faith effort has been made to contact the individuals described in subdivisions (1) through (8) of this subsection.

(b)(1)  If there is more than one surviving child of the decedent and the majority of the children is unable to be contacted, less than a majority of the surviving children may make the decisions if they have made prompt, reasonable efforts to contact all other surviving children, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions.

(2)  If one parent is unable to be contacted, the remaining parent may make the decisions if that parent has made prompt, reasonable efforts to contact the other parent and is not aware of any opposition by the other parent to the decisions. 

(3)  If there is more than one surviving sibling of the decedent and the majority of the siblings is unable to be contacted, less than a majority of the surviving siblings may make the decisions if they have made prompt, reasonable efforts to contact all other surviving siblings, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions.

(4)  If there is more than one family member in the highest applicable order of kinship under the laws of descent and distribution and the majority of these family members are unable to be contacted, less than a majority of the surviving family members in this order may make the decisions if they have made prompt, reasonable efforts to contact all other surviving family members in this order, prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions.

§ 5228.  Forfeiture

An individual recognized under section 5227 of this title to have a right of disposition shall forfeit that right in the following circumstances:

(1)  the individual is identified by a law enforcement agency as a person of interest and likely to be prosecuted or is under prosecution for first or second degree murder or voluntary manslaughter in connection with the decedent’s death, if the status of the investigation or the prosecution is known to the funeral director or crematory operator, except that if the prosecution is not pursued or the individual is acquitted of the alleged crime before the remains are disposed of, the individual shall regain the right;

(2)  the individual does not exercise the right of disposition within three days of notification of the death or within five days of the decedent’s time of death, whichever is earlier;

(3)  the probate court pursuant to section 5231 of this title determines that the individual entitled to the right of disposition and the decedent were estranged at the time of death; or

(4)  as otherwise ordered by the probate court.

§ 5229.  COST OF DISPOSITION

The cost for the disposition of remains and funeral goods or services shall be borne by the decedent’s estate, subject to the limits for insolvent estates imposed by section 1205 of Title 14, or any individual who agrees to pay the costs.  Nothing in this subchapter shall be construed to require a funeral director or crematory operator to provide goods or services for which there is no payment. 

§ 5230.  RIGHTS OF FUNERAL DIRECTOR OR CREMATORY
              OPERATOR

A funeral director or crematory operator may determine the final disposition of remains and may file a civil action in probate court against a person, estate, banking institution, governmental agency, or other entity which may have liability for the final disposition, either:

(1)  to seek a declaratory judgment that the director’s or operator’s proposed action would be in compliance with the applicable provisions of law; or

(2)  to seek a judgment that the director or operator’s action is in compliance with the applicable provisions of law and to recover reasonable costs and fees for the final disposition when:  

(A)  the funeral director or crematory operator has actual knowledge that there is no surviving family member, guardian, or individual appointed to arrange for the disposition of decedent’s remains pursuant to chapter 231 of this title;

(B)  the funeral director or crematory operator has made reasonable efforts to locate and contact any known family member, guardian, or agent; and

(C)  the appropriate local or state authority, if any, fails to assume responsibility for disposition of the remains within 36 hours of written notice, which may be delivered by hand, United States mail, facsimile transmission, electronic means, or telegraph.

§ 5231.  Civil action

(a)  Any individual who is a near relative of the decedent or the custodian of the decedent’s remains may file an action in probate court requesting the court to appoint an individual to make decisions regarding the disposition of the decedent’s remains or to resolve a dispute regarding the appropriate disposition of remains, including any decisions regarding funeral goods and services.  The court or the individual filing the action may move to join any necessary person under its jurisdiction as a party.  The agency of human services may also be joined as a party if it is suggested on the record that there will be insufficient financial resources to pay for funeral goods and services. 

(b)  In making its decision, the court shall consider the following factors:

(1)  the decedent’s expressed directions or wishes;

(2)  the decedent’s religious affiliation or beliefs;

(3)  the cost and practicality of the proposed arrangements and disposition and the ability of the responsible party or parties to pay for the proposed arrangements and disposition;

(4)  the relationship between the decedent and any individual claiming the right of disposition, including whether the individual and the decedent were estranged;

(5)  the wishes of any individual willing to pay the cost of the proposed arrangements and disposition;

(6)  whether the proposed arrangements are inclusive of the desires of the family; and

(7)  any other information the court, in its discretion, deems relevant.

(c)  Except as provided for under subdivision (b)(4) of this section, an individual who has paid or agreed to pay for all or part of the funeral arrangements or final disposition does not have greater priority to the right to disposition than as set forth in section 5227 of this title.

(d)(1)  A funeral director or crematory operator may refuse to accept bodily remains, to inter or otherwise dispose of bodily remains, or to complete the arrangements for the final disposition until such time as the court issues an order or the parties to the action submit a final stipulation approved by the court regarding the disposition of remains.

(2)  If the funeral director or crematory operator retains the remains for final disposition while an action is pending, the funeral director or crematory operator may refrigerate or shelter the remains while awaiting a preliminary or final order of the court.  The cost of refrigeration or sheltering shall be the responsibility of the party or parties who contracted with the funeral director or crematory operator, the person or entity who is otherwise liable for the costs of final disposition, or the estate as ordered by the court, or any combination of these, and the court may include in the order a decision concerning which of these shall be responsible for paying these costs.    

(e)  If a funeral director or crematory operator commences an action under this section, the funeral director or crematory operator may ask the court to include an order against the estate or the parties for reasonable legal fees and costs.  If the estate is insolvent and no other person should be responsible for the filing fee, the court may waive the filing fee.  The court, in its discretion, may order a party or parties to pay the reasonable costs of final disposition as a condition of the appointment to make disposition decisions.  The court may order that a party, or parties, including the petitioner, pay reasonable legal fees and costs associated with the action.

(f)  Any appeal from the probate court shall be on the record to the superior court.  There shall be no appeal as a matter of right to the supreme court.

§ 5232.  Procedures generally

(a)  Any action filed under this subchapter shall be summary in nature, and a hearing shall be held as soon as practicable.  The probate court may order interim, ex parte relief based on available information.   In extraordinary circumstances, the court may authorize use of discovery, subject to the inherent time constraints required because of the subject matter.   The Vermont Rules of Evidence shall not apply, except for those rules respecting privilege.  Affidavits of parties and witnesses shall be admissible evidence that may be rebutted by witnesses or affidavits offered by other parties.  Other evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their daily affairs.  Telephone testimony shall be authorized unless otherwise ordered for good cause shown.  Any person shall be entitled, but not required, to be represented by an attorney. 


§ 5233.  LIMITED LIABILITY 

A funeral director or crematory operator shall not be subject to civil liability or subject to disciplinary action for carrying out the disposition of the remains if he or she relied in good faith on a funeral service contract or authorization or for following the instructions of an individual whom the funeral director or crematory operator reasonably believes or believed holds the right of disposition. 

Sec. 2.  4 V.S.A. § 311 is amended to read:

§ 311.  JURISDICTION GENERALLY

The probate court shall have jurisdiction of the probate of wills, the settlement of estates, trusts created by will, trusts of absent person’s estates, charitable, cemetery and philanthropic trusts, irrevocable trusts created by inter vivos  agreements solely for the purpose of removal and replacement of trustees pursuant to subsection 2314(c) of Title 14, the appointment of guardians, and of the powers, duties and rights of guardians and wards, proceedings concerning chapter 231 of Title 18, accountings of attorneys in fact where no guardian has been appointed and the agent has reason to believe the principal is incompetent, relinquishment for adoption, adoptions, uniform gifts to minors, changes of name, issuance of new birth certificates, amendment of birth certificates, correction or amendment of marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, civil actions brought under subchapter 3 of chapter 107 of Title 18 relating to disposition of remains, proceedings relating to the conveyance of a homestead interest of a spouse under a legal disability, the issuance of declaratory judgments, issuance of certificates of public good authorizing the marriage of persons under 16 years of age, appointment of administrators to discharge mortgages held by deceased mortgagees, appointment of trustees for persons confined under sentences of imprisonment, fixation of compensation and expenses of boards of arbitrators of death taxes of Vermont domiciliaries, and as otherwise provided by law.

Sec. 3.  4 V.S.A. § 311a(30) is added to read:

§ 311a.  VENUE GENERALLY

For proceedings authorized to probate courts, venue shall lie in a district of the court as follows:

* * *

(30)  Proceedings under subchapter 3 of chapter 107 of Title 18, in the district where the decedent resided at the time of death or where the remains are currently located. 


Sec. 4.  32 V.S.A. § 1434(a)(20) is added to read:

§ 1434.  PROBATE COURTS

(a)  The following entry fees shall be paid to the probate court for the benefit of the state, except for subdivision (13) of this subsection which shall be for the benefit of the county in which the fee was collected:

* * *

(20)  Civil actions brought pursuant to                  $  50.00

subchapter 3 of chapter 107 of Title 18.

Sec. 5.  18 V.S.A. § 5201 is amended to read:

§ 5201.  PERMITS; REMOVAL OF BODIES; CREMATION; WAITING PERIOD; INVESTIGATION INTO CIRCUMSTANCES OF DEATH

* * *

(b)  No operator of a crematory facility shall cremate or allow the cremation of a dead body until the passage of at least 24 hours following the death of the decedent, as indicated on the death certificate, unless, if the decedent died from a virulent, communicable disease, a department of health rule or order requires the cremation to occur prior to the end of that period.  If the attorney general or a state’s attorney requests the delay of a cremation based upon a reasonable belief that the cause of death might have been due to other than accidental or natural causes, the cremation of a dead human body shall be delayed, based upon such request, a sufficient time to permit a civil or criminal investigation into the circumstances that caused or contributed to the death.

(c)  The person in charge of the body shall not release for cremation the body of a person who died in Vermont until the person has received a certificate from the chief, regional or assistant medical examiner that the medical examiner has made personal inquiry into the cause and manner of death and is satisfied that no further examination or judicial inquiry concerning it is necessary.  The certificate shall be retained by the person in charge of the body crematory for a period of three years.  For the certificate, the medical examiner is entitled to a fee of $10.00 $25.00 payable by the person requesting cremation.

(d)(1)  For all cremations requested for the body of a person who died outside Vermont, the crematory operator must do the following before conducting the cremation:

(A)  obtain a permit for transit or cremation;

(B)  follow the guidelines of the medical examiner or comparable office for the jurisdiction in which the person died, including, to the extent that such waiting period is longer than that imposed by the provisions of subsection (b) of this section, postponing the cremation until the passage of any waiting period imposed by that state; and

(C)  if the state in which the person died issues a medical examiner’s permit, obtain a copy of that permit. 

(2)  No additional approval from the Vermont medical examiner’s office shall be required if compliance with the guidelines of the state in which the person died is achieved.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us