Are Funeral Wishes in a Will Legally Binding?

Thinking about your own funeral can be kind of uncomfortable, but most of us have at least a general idea of what we would want: burial or cremation, funeral or memorial service, religious or secular. Some of us have highly specific funeral wishes. For instance, one older woman we knew wanted the church at her funeral decorated with her large collection of decorative birdhouses; at the end of the services, mourners were instructed to take a birdhouse they liked to remember her by.

Whether you have imagined every detail of your send-off, or whether this is the first time you’ve thought of it, one thing is for certain: you won’t be there to carry out your own wishes. If you want the funeral you have envisioned, you will have to communicate your preferences to someone else. But what is the best way to do that? The logical way to convey your funeral wishes might seem to be a will. Read on to learn why putting your funeral preferences in a will is probably a bad idea—and to get some better ones.

Does a Will Include Funeral Wishes?

Technically, a will can include funeral wishes, but that doesn’t mean those wishes are legally binding. But there’s another important reason not to put your funeral wishes in your will: often, family members won’t think to look for a will until days or weeks after their loved one’s death. By that time, it is often too late to honor any wishes that are outlined in the will. Not only might your preferences not be honored, but your loved ones could be devastated to learn that they failed to respect your last wishes.

There are, unfortunately, also situations in which a person’s family is aware of their preferences for a funeral or memorial and deliberately chooses not to honor them. A common example is when the deceased person followed a different religious tradition from the family planning their funeral, and the family arranges for a funeral according to their own tradition. Another increasingly common scenario is for the family of a deceased transgender person to fail to acknowledge the decedent’s gender identity or chosen name or pronouns.

In light of all of the information above, there are two questions to ask yourself:

• Do the people with the legal ability to plan my funeral (my next-of-kin) know what I would want?
• If they know my wishes, are they likely to honor them?

If you are not absolutely certain that the answer to both questions is “yes,” you should take measures to ensure that your funeral wishes are both known and respected.

Ensuring That Your Funeral Wishes Are Respected in Ohio

It’s possible that simply talking to your loved ones about your funeral preferences and your choices regarding burial, cremation, or other disposition will be enough to have your wishes honored. But it makes even more sense to put your choices in writing. Doing so is even more important if the person(s) you want to be in charge of your final arrangements are not your legal next-of-kin, who would otherwise have the authority to make those decisions.

Under Ohio law, you can make a declaration for funeral arrangements and disposition of bodily remains. This document allows you to legally appoint a representative to carry out your funeral wishes and preference for the disposition of your remains. It also describes those preferences and identifies a successor representative in the event your first-named representative is unable to serve. You can even use this document to identify sources of funds for your funeral and burial or cremation.

Your chosen representative should be aware of and have access to your declaration for funeral arrangements so that they will know your funeral wishes. The document also gives them authority in the eyes of others to carry those wishes out, especially if they would not otherwise have legal authority to make decisions regarding your remains.

For example, if you would prefer a romantic partner to whom you are not married to make your final arrangements, rather than your parents, you can give them that power through a declaration for funeral arrangements. Service providers who rely on a properly executed declaration cannot be held liable for actions taken based on that reliance. That protects funeral homes, funeral directors, crematory operators, and others who are asked to assist with a “funeral, burial, cremation, or other manner of final disposition,” and makes it easier for your chosen representative to make arrangements in accordance with your wishes.

Where Should I Keep My Declaration for Funeral Arrangements?

As with your estate plan in general, your declaration for funeral arrangements should be where those closest to you will know where to find it. You should give your chosen representative a copy so that they will know that you are expecting them to make your final arrangements. Your successor representative should have a copy as well. You should also keep a copy with your other estate planning documents or important papers.

If your next-of-kin expects to be responsible for your funeral planning but you have made other arrangements through your declaration, you should let them know that you have made plans for someone else to arrange for your funeral or memorial and the disposition of your remains so that they will not expect to be in charge of that.

To learn more about how to ensure that your funeral wishes and other final wishes are honored, contact Gudorf Law Group to schedule a consultation.