If someone signs a preneed funeral contract or a cremation authorization before they die, do those written directions beat the surviving family's contrary wishes after death?

Plain-English summary

William R. Hoke, attorney for the NC State Board of Mortuary Science, asked the AG two related questions: Does a preneed funeral contract that the decedent signed for their own arrangements beat the contrary wishes of next of kin? Does a cremation authorization form that the decedent signed beat the contrary wishes of the statutory "authorizing agents" listed in G.S. 90-210.41?

AG Michael F. Easley, through Special Deputy AG Charles J. Murray, concluded "Yes" to both, with the standard caveat that the will (if any) does not address the issue. The reasoning blended common law, NC statute, and the limited NC case law on disposition of remains.

The common-law starting point is divided. The Am Jur 2d treatise summarizes one line of cases as giving the decedent's preference precedence over other interests, while another line treats the decedent's preference as subordinate to the wishes of the surviving spouse or next of kin. The CJS treatise leans toward the decedent's preference controlling. Many courts said the answer depends on the facts of the case.

North Carolina's own statutory and case law pointed in a particular direction. N.C.G.S. § 28A-13-1 authorizes the personal representative of an estate (including a person named executor in a will, before formal appointment) to carry out the decedent's written instructions concerning their body, funeral, and burial arrangements. The N.C. Court of Appeals in Dumochelle v. Duke University, 69 N.C. App. 471 (1984), held that a testamentary provision directing disposition of the testator's body must prevail over conflicting wishes of the next of kin. The express holding was limited to testamentary provisions, but a footnote noted that G.S. 28A-13-1 lets the personal representative carry out written instructions whether they appear in a will or not.

Read together, those authorities led the AG to extend the same logic to non-testamentary written expressions. Preneed funeral contracts (defined in G.S. 90-210.60(5)) and cremation authorization forms are written, formal, witnessed expressions of the decedent's own wishes about the disposition of the decedent's own body. They fit comfortably within the "written instructions" the personal representative is authorized to carry out under G.S. 28A-13-1, and they reflect the same kind of considered, written intent that drove the Dumochelle holding. The AG therefore concluded that, generally, a preneed licensee or crematory operator should follow the decedent's written directions even when the surviving spouse or next of kin (or, for cremations, the statutory authorizing agents) want something different.

The AG noted that Articles 13C (cremations) and 13D (preneed contracts) of Chapter 90 do not directly address the priority question, but both recognize and authorize formal written instruments for the decedent to direct disposition of their own remains.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

North Carolina has since enacted statutes that more directly address the priority of a decedent's written directives. G.S. 90-210.124 (control of the disposition of last remains) and amendments to Article 13 of Chapter 90 have updated the framework. The Funeral Service Act and its rules have been revised. Anyone applying this opinion to a current dispute should consult the present text of G.S. 90-210.124 (the "right to control disposition" statute) and any later cases addressing how preneed contracts interact with that scheme.

Common questions

Q: What is a preneed funeral contract?
A: A contract a living person signs with a funeral establishment to arrange for their own future funeral and burial or cremation, typically with prepayment placed in a trust or used to buy an insurance product. Article 13D of Chapter 90 (G.S. 90-210.60 et seq., as the statutes stood in 1993) governs how preneed licensees handle the money and the contract.

Q: Who are the "authorizing agents" for cremation?
A: Persons listed in G.S. 90-210.41 (as it stood in 1993) who are statutorily entitled to authorize a cremation. Typically the decedent's spouse, then adult children, then parents, then siblings, and so on down a familial priority list. The cremation cannot occur without one of them signing the cremation authorization form, except when the decedent has signed their own.

Q: Why didn't the AG just rely on common law?
A: Because the common law was split. Am Jur 2d described the next-of-kin-first rule; CJS leaned toward the decedent's preference; some states had statutes either way. The AG needed firmer NC-specific footing, and G.S. 28A-13-1 plus the Dumochelle footnote provided it.

Q: What was the holding in Dumochelle v. Duke University?
A: A Florida resident died at Duke. Her two daughters (one of whom was unaware of the mother's wishes) instructed Duke to cremate the body. The mother had a will providing for burial in Ohio. The decedent's grandson, the named executor, learned of the will's burial provision and called Duke to cancel the cremation. Duke followed the grandson's instruction. The daughters sued Duke for following the grandson rather than them. The Court of Appeals held the testamentary burial provision controlled over the contrary wishes of the next of kin, and the daughters had no standing to sue.

Q: What if the will conflicts with the preneed contract?
A: The opinion's premise assumed the will was silent. When a will and a preneed contract conflict, courts generally treat the later-in-time written expression as controlling, but the question is not addressed in this opinion and should not be answered from this opinion alone.

Q: Does this opinion bind a funeral home today?
A: An AG opinion is persuasive authority, not binding precedent. The more recent statutes (especially G.S. 90-210.124) and any subsequent case law are the operative sources. The opinion is useful historical context for how NC arrived at the current framework.

Background and statutory framework

The disposition of a dead body is one of the oldest mixed common-law/statutory problems in Anglo-American jurisprudence. Early cases (Kyles v. R.R., 147 N.C. 394 (1908); Floyd v. R.R., 167 N.C. 55 (1914)) recognized that the right to possession of a dead body for burial belongs, in the absence of testamentary direction, to the surviving spouse or next of kin. That common-law default produced disputes when family members disagreed, when the decedent had clearly expressed a different preference, and when third parties (employers, hospitals, life insurance trusts) had information no one else had.

Twentieth-century statutes increasingly recognized written instruments for decedents to direct their own arrangements. North Carolina's Anatomical Gift Act (G.S. 130A-406 in the 1993 reference) accepted certain written gifts of body parts. G.S. 28A-13-1 authorized the personal representative to carry out written funeral and burial instructions even before formal appointment. Article 13C (cremations) and Article 13D (preneed contracts) of Chapter 90 added statutory frameworks for cremation authorizations and prepaid funeral arrangements.

Dumochelle, the only NC appellate case squarely on the priority question in 1984, sided with the decedent's written expression over the next of kin's competing wishes. The opinion's reasoning rested on the policy preference, expressed across multiple statutes, for honoring the decedent's own informed written choices. The footnote about non-testamentary written instructions was dicta but pointed clearly toward the result the AG reached in 1993.

This opinion thus sits at a particular moment in the development of NC law on disposition of remains: after Dumochelle, before the more comprehensive 21st-century statutory framework. Anyone using it should treat it as a snapshot, not as a current legal manual.

Citations

• N.C.G.S. § 28A-13-1 (personal representative may carry out written funeral instructions before formal appointment)
• N.C.G.S. § 90-210.41 (authorizing agents for cremation, 1993 version)
• N.C.G.S. § 90-210.60 (preneed funeral contract definitions and framework)
• N.C.G.S. § 90-210.60(5) (definition of preneed funeral contract)
• N.C.G.S. § 130A-406 (anatomical gifts framework, 1993 version)
• Dumochelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984) (testamentary burial provision overrides next-of-kin wishes; footnote on G.S. 28A-13-1 non-testamentary instructions)
• Kyles v. R.R., 147 N.C. 394, 61 S.E. 278 (1908) (common-law next-of-kin possession of body in absence of testamentary direction)
• Floyd v. R.R., 167 N.C. 55, 83 S.E. 12 (1914) (citing Kyles with approval)
• Parker v. Quinn-McGowen Co. (common-law next-of-kin right to possession of body for burial)
• O'Dea v. Mitchell, 350 Mass. 163, 213 N.E.2d 870 (1966) (Massachusetts in accord with Dumochelle approach)

Source

• Landing page: https://ncdoj.gov/opinions/directions-by-decedent-regarding-funeral-arrangements-in-a-preneed-contract/

Original opinion text

FORMAL OPINION

DATE: August 13, 1993

SUBJECT: Directions by a Decedent Regarding Funeral Arrangements in a Preneed Contract or Authorization Form for Cremation

REQUESTED BY: Mr. William R. Hoke, Attorney for the North Carolina State Board of Mortuary Science

QUESTIONS:

1. Assuming that the decedent does not address funeral, burial, cremation, etc. matters in a will, does a preneed funeral contract, defined in G.S. § 90-210.60(5), executed by the decedent for his own arrangements, overrule, following the decedent's death, the conflicting wishes of the decedent's next of kin?

2. Again, assuming that the will, if any, does not speak to the issue, does a decedent's signing a funeral home's or crematory's authorization form, authorizing the decedent's own cremation, overrule the conflicting wishes of the "authorizing agents", as defined in G.S. § 90-210.41?

CONCLUSIONS:

1. Yes

2. Yes

DISCUSSION:

At the outset it is helpful to begin with a review of the common law as to the effect to be given the expressions of the decedent with regard to the disposition of his or her dead body.

Some courts appear to acknowledge that a preference expressed by a decedent with regard to the disposition of his dead body should normally be given precedence over other interests, while others have taken the contrary position that the decedent's preference as to the disposition of his body after death is normally subordinate to the wishes of his surviving spouse or next of kin. However, a number of courts have recognized that the weight to be accorded to the decedent's preference must be determined on a case by case basis, in light of all relevant circumstances, and after an evaluation of all competing interests.

22A Am Jur 2d Dead Bodies § 30.

Effect of deceased's preference. It is generally recognized that every person has the right to determine the disposition which shall be made of his body after death, and in some states the right is conferred by statute, and it has been said that the wishes of a decedent with respect to the disposition of his remains are paramount. Decedent's right to determine the disposition which shall be made of his remains is a personal right, and not testamentary in character, since there is no property right in a dead body, in the ordinary sense, as stated supra § 2. It has been stated that the general rule is that, while legal compulsion may not attach to the wishes or directions of a decedent as to his interment, they are entitled to respectful consideration and are accorded great weight, and ordinarily the courts will give effect to them if possible, even in the face of opposition by the surviving spouse or the next of kin. It has, however, been held to be an open question whether the desires of the decedent should prevail against those of a surviving spouse.

Where the directions given by decedent as to the disposition of his body cannot be carried out, it may be proper for an interested party to seek the guidance of the court, and the court may direct what disposition of the body should be made, and may direct a disposition which is in accordance with the wishes of the surviving spouse or next of kin.

No particular formality is required in directing the disposition of one's remains, but such directions may be parol, the last wish controlling, and whether the deceased did indicate a preference or leave directions is a fact question to be determined under the ordinary rules of evidence.

25A CJS Dead Bodies § 3 pp 493, 494.

From the above it appears that there is a divergence in the two authorities with CJS favoring the expressions by a decedent and Am Jur following the more traditional view which is said to be based on the belief that a decedent, being dead, cannot own any property right in a body, 7 ALR3d 747 (1966). The above discussions both note that any general rule may have to be altered in a particular case due to unusual circumstances.

Turning to North Carolina law, N.C.G.S. § 28A-13-1 expressly authorizes the personal representative of a decedent's estate to carry out the decedent's written instructions even prior to the personal representative's appointment as executor.

Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to his body, funeral and burial arrangements . . . .

N.C.G.S. § 28A-13-1.

The case of Dumochelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984) involved the following facts.

Plaintiff's mother, a Florida resident, died in defendant's hospital on 5 September 1980. Upon learning of their mother's death, plaintiffs paid $200.00 and instructed defendant to cremate the body. Plaintiffs then drove to Florida, where they discovered their mother's will and learned for the first time that it was Mrs. Post's wish to be buried in Ohio. Plaintiffs did not attempt to cancel the cremation as they believed it had already been completed. Plaintiffs then contacted Robert Randolph, Mrs. Post's grandson, and told him that he had been named executor of the will, but did not inform him of the provision for burial in Ohio.

During her life Mrs. Post told Randolph she wanted to be buried in Ohio, and on learning of her death, Randolph telephoned defendant and cancelled the cremation. It is unclear whether Randolph told defendant that the change in funeral plans was due to his personal wishes or those of Mrs. Post. Defendant did not contact plaintiffs or consult them before carrying out Randolph's instructions to have the body shipped to Ohio for burial. Plaintiffs learned of the change in plans about two months later.

69 N.C. App. at 473, 317 S.E.2d at 100.

The opinion in the case included the following discussion.

Plaintiffs' argument rests upon the proposition that a decedent's nearest next-of-kin have final authority over funeral arrangements. As a general rule, the next-of-kin have the right to possess the body of a decedent for the purpose of burial. Parker v. Quinn-McGowen Co., supra. The issue of whether the wishes of the decedent concerning burial may prevail over those of the next-of-kin has never been directly addressed by the courts of our state. There is authority, however, for the proposition that a testamentary provision concerning burial should override contrary wishes of the decedent's next-of-kin. In Kyles v. R.R., 147 N.C. 394, 61 S.E. 278 (1908) our supreme court noted in dicta that "[t]he right to the possession of a dead body for the purpose of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin . . . " Although the foregoing language was dicta, it has been cited with approval by our supreme court in at least one later case, Floyd v. R.R., 167 N.C. 55, 83 S.E. 12 (1914) and we see no reason to adopt a contrary rule today.

69 N.C. App. at 474, 317 S.E.2d at 103 (alteration in original).

The Court of Appeals then discusses the import of N.C.G.S. § 28A-13-1 and N.C.G.S. § 130A-406 (relating to anatomical gifts) to the effect that directions in the decedent's will may be given effect prior to probate of the will. The Court holds:

Based on the foregoing discussion, we hold that a testamentary provision directing disposition of the testator's body must prevail over conflicting wishes of the testator's next-of-kin. It follows that the next-of-kin in such a case have no right to possession of the body for the purpose of selecting funeral arrangements and therefore they have no standing to sue defendant for negligence for its failure to carry out the cremation of Mrs. Post's body. Accord, O'Dea v. Mitchell, 350 Mass. 163, 213 N.E.2d 870 (1966).

69 N.C. App. at 476, 317 S.E.2d at 104.

The express holding of the Doumouchelle case is limited to testamentary provisions by the decedent despite the facts of the case that the directions followed by the defendant hospital were the directions given orally by the decedent to her grandson and relayed telephonically by him to the defendant hospital. Because the holding is limited to testamentary provisions, the case does not directly answer the questions presented; however, a footnote is pertinent.

Although we only decide today that a written testamentary provision overrules conflicting wishes of the next-of-kin concerning disposition of the testator's body, we note that G.S. § 28A-13-1 permits the personal representative of the deceased to carry out written instructions pertaining to disposition of the body, whether they appear in a will or not . . . .

69 N.C. App. 476, 317 S.E.2d at 104 (emphasis added).

Neither Article 13C (cremations) nor Article 13D (preneed contracts) of Chapter 90 of the General Statutes addresses the central issue in both of the questions presented, i.e., the relative weight to be given to the written expressions of the decedent regarding funeral arrangements where the surviving spouse or next of kin have contrary desires. However, those statutes, similar to the statutes relating to anatomical gifts, do recognize and authorize written instruments (preneed funeral contracts and cremation authorization forms) which may be used for the purpose of giving directions for the disposition of a dead body. Although clearly dicta, the language of the footnote from Doumouchelle interprets N.C.G.S. § 28A-13-1 to authorize the following of the decedent's non-testamentary written directions by his or her executor.

In light of the apparent view of the Court of Appeals that written non-testamentary expressions by the decedent may be given effect and the statutory recognition by the General Assembly of a preneed funeral arrangement contract as a method to express a decedent's desires, we conclude that generally a preneed licensee or a crematory operator should follow the written directions of the decedent in a preneed funeral contract or in a cremation authorization form signed by the decedent, despite contrary directions from a surviving spouse or the decedent's next of kin.

MICHAEL F. EASLEY
Attorney General

Charles J. Murray
Special Deputy Attorney General