Ted Williams, arguably the greatest left-handed hitter in baseball, died in 2002 with 3 adult children. In the immediate aftermath of his death, rather than celebrate a full life as a hall of fame baseball player and war veteran, his children squabbled over what to do with his body. Ted’s will stated he wanted to be buried but two of his kids had his remains frozen instead based on Ted’s hand-written instructions on a napkin. A legal fight ensued among the children over whether these instructions were real or not  with the two kids eventually winning (I am, sadly, not making this up).

Most of us would never engage in such a high-profile and costly legal fight over the burial of a loved one but what does the law say about this topic?

First, here is some practicality about the matter. Wills are often read weeks after the funeral. Therefore, the possibility exists that your family may have had you cremated rather than the New Orleans style funeral you wanted. Given the timing issue, some lawyers suggest not even putting burial instructions in your will.

Instead, the practical step would be to set out in writing (preferably not on a napkin and witnessed by an adult with no vested interest in your estate) the manner in which you wished your body to be disposed of. In some jurisdictions, in the absence of any instructions, the spouse then the children (assuming they are not minors) then the parents of the deceased can decide. Please consult a lawyer if you live in one of these jurisdictions.

However, there is a catch. There is long standing common law that the executor/estate trustee may over-ride both the deceased and its next of kin’s wishes for burial instructions. Given one of the executor’s largest responsibilities is to settle the estate financially,  the executor may ignore burial instructions if the carrying out of such instructions would place an undue financial burden on the estate (just so you know, estates can declare bankruptcy if the deceased passes away with debts greater than assets on a liquidated basis).

For example, a deceased with young minor children and a modest sized estate passes away in Maine and wishes to be cremated and his ashes scattered off the coast of Hawaii having being born there. The cost of this type of funeral arrangement can be quite substantial and the executor may have to make the decision that it is better to leave more for the minor children rather than draining the estate’s assets to carry out the deceased’s wishes.

In light of the foregoing, the practical step, if funeral arrangements are very important to all concerned, is to set aside money or pre-pay for the arrangement. For example, if an elderly person has been moved to a long-term care facility far from where their beloved and late spouse is buried, financial arrangements should be made now so that they lay together at death. While a morbid topic to discuss, it is better to plan now from both an emotional and financial perspective.