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Do You Have the Legal Right to Order Disposition of Deceased?


Example: Suppose you are the son or daughter of the deceased, but the deceased has a "competent surviving spouse." You do not have the legal right to determine the disposition of the deceased's remains unless the spouse has given you that right in writing.

By California Health and Safety Code Section 7100, the legal right to determine and order disposition of the remains of a deceased person is given in this order:

FIRST to the competent surviving spouse. If there is no competent surviving spouse, then the right is given to:

SECOND to the sole surviving competent adult child of the decedent.
If there is more than one surviving competent adult child, the majority of the surviving adult children must be in agreement concerning disposition of decedent's remains. The decisions and instructions made by a minority of the surviving competent adult children shall prevail if "reasonable efforts to notify all other surviving competent adult children" have been made to inform those other surviving adult children of the instructions made for disposition, and there seems to be no opposition.

THIRD to the surviving competent parent or parents of the decedent.
If one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving competent parent.

FOURTH to the sole surviving competent adult sibling of the decedent,
or if there is more than one surviving competent adult sibling of the decedent, the majority of the surviving competent adult siblings. However, less than the majority of the surviving competent adult siblings shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving competent adult siblings of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult siblings.

FIFTH to the surviving competent adult person or persons respectively in the next degrees of kinship,
or if there is more than one surviving competent adult person of the same degree of kinship, the majority of those persons. Less than the majority of surviving competent adult persons of the same degree of kinship shall be vested with the rights and duties of this section if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kinship of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult persons of the same degree of kinship.

SIXTH to the public administrator when the deceased has sufficient assets.

CLICK HERE FOR IMPORTANT INSTRUCTIONS FOR FILLING OUT THE NECESSARY FORMS

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Photos copyright © 2011 Clarice Gerbl