If a Virginia person designated someone in a § 54.1-2825 writing to handle 'burial' arrangements, can that designee also take over funeral planning, and does the designee outrank the family?

Plain-English summary

Section 54.1-2825 lets a Virginia resident sign a notarized writing designating someone (often a friend, partner, or chosen family member rather than blood kin) to "make arrangements for his burial or the disposition of his remains, including cremation, upon his death." Speaker Howell asked the Attorney General two questions about the scope of that statute: First, does "burial" mean just the actual disposition of remains (narrow reading), or does it cover the full funeral planning process (broad reading)? Second, when the designee is named, does that person have priority over the decedent's blood relatives (the legal spouse, children, parents, siblings, grandparents) under § 54.1-2807(B)?

Acting Attorney General William Mims answered both questions in a way that limits the designee's power. First, "burial" in § 54.1-2825 means the disposition of remains, including interment and cremation, but not the broader planning of a funeral service. The dictionary definition of "burial" supports this narrower reading, and the statute itself uses "burial or the disposition of his remains" as essentially synonymous phrases. The "practice of funeral services" is a separately defined and broader concept under § 54.1-2800.

Second, the designee under § 54.1-2825 is automatically included in the statutory list of "next of kin" defined in § 54.1-2800, but that list is "broad and coequal" (as a federal court put it in Siver v. Rockingham Memorial Hospital). There is no internal hierarchy: the designee does not outrank the spouse, the spouse does not outrank the children, and so on. Any member of the class may direct disposal of the body, and the funeral home has a statutory duty under § 54.1-2807(B) to inquire about the desires of the next of kin (any of them) before accepting the body.

The practical implication is significant. A § 54.1-2825 designation gives the chosen person a seat at the table but not a controlling vote. The funeral home faces a coequal class. If next of kin disagree (designee wants cremation, surviving spouse wants traditional burial), the funeral home has competing instructions and may need to seek judicial guidance or simply act on the first directing party who steps forward.

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

The Virginia Funeral Services chapter, Title 54.1, Chapter 28 (§§ 54.1-2800 to 54.1-2825 and others), regulates funeral directors, embalmers, and related professionals. Section 54.1-2800 defines key terms:

• "Next of kin" means any of the following, regardless of relationship to the decedent: any person designated under § 54.1-2825, the legal spouse, child over 18, custodial parent, noncustodial parent, siblings over 18, guardian of minor child, guardian of minor siblings, maternal grandparents, paternal grandparents, maternal siblings over 18, paternal siblings over 18, or any other relative in descending order of blood relationship.
• "Practice of funeral services" means engaging in the care and disposition of human remains, preparation for funeral service, burial or cremation, the making of funeral arrangements, and similar professional functions.

Section 54.1-2807(B) imposes a duty on funeral homes:

Funeral service establishments shall not accept a dead human body from any public officer except a medical examiner, or from any public or private facility or person having a professional relationship with the decedent without having first inquired about the desires of the next of kin and the persons liable for the funeral expenses of the decedent. The authority and directions of any next of kin shall govern the disposal of the body.

Section 54.1-2825 (preneed-contracts article, §§ 54.1-2820 to 54.1-2825) authorizes the designation:

Any person may designate in a signed and notarized writing, which has been accepted in writing by the person so designated, an individual who shall make arrangements for his burial or the disposition of his remains, including cremation, upon his death.

The interpretive question is the scope of "burial" in § 54.1-2825 and the relative priority of the designee within the § 54.1-2800 next-of-kin class.

The dictionary defines "burial" as "the act or process of burying," and "bury" as "to dispose of by depositing in or as if in the earth; esp: to inter with funeral ceremonies." The Eastern District of Virginia in Mazur v. Woodson held that "disposition includes burial." The terms point to the act of disposing of remains, not the funeral service surrounding it.

The Western District of Virginia in Siver v. Rockingham Memorial Hospital analyzed the next-of-kin definition in § 54.1-2800 and concluded that the General Assembly fashioned "a class of individuals with rights to a body that are both broad and coequal. Any person within that class has the right to possess, preserve, or bury the dead body[.]"

What the AG concluded

"Burial" in § 54.1-2825 means disposition of remains, not funeral planning. The statute itself uses "burial or the disposition of his remains" as alternative phrasings of the same concept. Dictionary definitions confirm the narrow reading. The "practice of funeral services" is a broader, separately defined concept that includes additional functions beyond what § 54.1-2825 authorizes.

The designee joins the next-of-kin class. Section 54.1-2800 explicitly lists "any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825" as the first item in the next-of-kin definition.

The next-of-kin class is broad and coequal. Siver v. Rockingham established that the class members do not have priority over one another. The General Assembly's structure is non-hierarchical. Any next of kin may direct the disposal of the body, and the funeral home must inquire about all of them.

The funeral home's duty is plural. Section 54.1-2807(B) requires the funeral home to inquire about the desires of "the next of kin" (not just the designee). If multiple next of kin give conflicting directions, the funeral home cannot simply default to the designee's directives.

Common questions

If I want to ensure that my chosen person has the final say, what should I do?
The § 54.1-2825 designation alone doesn't give your chosen person priority. You may want to also (a) execute a preneed burial contract specifying your wishes, (b) ensure your loved ones know and agree on your wishes, and (c) consult an estate-planning attorney about whether other documents (advance directives, trust provisions) can lock in particular outcomes. The statutory framework as of 2009 did not allow for absolute priority by designation.

What happens if family members disagree?
The funeral home faces conflicting instructions from a coequal class. Common practice is to delay action, urge family mediation, or seek judicial guidance under the relevant procedural rules. Time pressures (the decedent's body cannot be held indefinitely) tend to drive compromise.

Can the designee plan the actual funeral service?
Not under § 54.1-2825 alone. The designation authorizes disposition arrangements (burial or cremation). Funeral service planning is the "practice of funeral services" as defined in § 54.1-2800, a broader activity. The designee can certainly participate, but the designee's statutory authority is the narrower disposition function.

Why did the General Assembly use a non-hierarchical structure?
The Siver court speculated that the General Assembly wanted to enable "orderly and expeditious internment" by the funeral director, without requiring a complete family hierarchy to be sorted out before any next of kin could act. The downside is that disputes can be hard to resolve.

What about preneed burial contracts?
A preneed burial contract under §§ 54.1-2310 et seq. is a contract for cemetery services or supplies (often the actual burial plot or cremation niche). It's regulated by the Cemetery Board, separately from funeral services. A preneed burial contract can lock in particular cemetery arrangements; it does not, by itself, give a particular person decision-making authority.

What about cremation?
Section 54.1-2825 explicitly includes cremation as a form of "disposition of remains." Section 54.1-2818.1 has separate requirements for cremation (medical examiner permission, visual identification by certain persons including the § 54.1-2825 designee, waiting period). A designation can authorize cremation, but the additional procedural requirements still apply.

Citations

• Va. Code Ann. § 54.1-2800 (definitions; next of kin)
• Va. Code Ann. § 54.1-2807(B) (funeral home inquiry duty)
• Va. Code Ann. § 54.1-2825 (designation of arrangements maker)
• Va. Code Ann. § 54.1-2310 (interment definition; preneed burial contract)
• Siver v. Rockingham Mem'l Hosp., 48 F. Supp. 2d 608 (W.D. Va. 1999)
• Mazur v. Woodson, 191 F. Supp. 2d 676 (E.D. Va. 2002)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-011-Howell.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

June 11, 2009

The Honorable William J. Howell
Speaker, House of Delegates
106 Carter Street
Fredericksburg, Virginia 22405

Dear Speaker Howell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether the word "burial" relating to preneed funeral contracts in § 54.1-2825 is to be read narrowly, i.e., as meaning "interment," or more broadly, as meaning "funeral." Further, you ask whether a person properly designated under § 54.1-2825 has priority over all of the decedent's next of kin in making the permitted arrangements or, by virtue of § 54.1-2800 and § 54.1-2807(B), is merely to be treated as any of the "next of kin."

Response

It is my opinion that the word "burial" in § 54.1-2825 is not synonymous with funeral and must be construed narrowly as authorizing the designee to make arrangements to dispose of a decedent's remains. It further is my opinion that pursuant to § 54.1-2807(B) a funeral home has a statutory duty to inquire about the desires of the next of kin, as defined by § 54.1-2800, prior to accepting a decedent's body, and the directions of "any next of kin" govern disposal of the body. Included in the nonhierarchical definition of next of kin is "any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825."

Applicable Law and Discussion

Section 54.1-2825, relating to preneed funeral contracts,[1] provides that "[a]ny person may designate in a signed and notarized writing, which has been accepted in writing by the person so designated, an individual who shall make arrangements for his burial or the disposition of his remains, including cremation, upon his death."

Section 54.1-2800 provides the following definitions for purposes of Chapter 28 ("Funeral Services") of Title 54.1, §§ 54.1-2800 through 54.1-2807.1 and §§ 54.1-2808.1 through 54.1-2825:

"Next of kin" means any of the following persons, regardless of the relationship to the decedent: any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825, the legal spouse, child over 18 years of age, custodial parent, noncustodial parent, siblings over 18 years of age, guardian of minor child, guardian of minor siblings, maternal grandparents, paternal grandparents, maternal siblings over 18 years of age and paternal siblings over 18 years of age, or any other relative in the descending order of blood relationship.

"Practice of funeral services" means engaging in the care and disposition of the human dead, the preparation of the human dead for the funeral service, burial or cremation, the making of arrangements for the funeral service or for the financing of the funeral service and the selling or making of financial arrangements for the sale of funeral supplies to the public.

In the absence of a statutory definition, the plain and ordinary meaning of the term is controlling.[2] It is well settled that "[i]f the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it."[3] The term "burial" means "the act or process of burying."[4] Further, the term "bury" means "to dispose of by depositing in or as if in the earth; esp: to inter with funeral ceremonies."[5] As such, the plain meaning of the term "burial" is the disposition of human remains through interment that may be, but need not be, part of a funeral. Further, while "care and disposition of the human dead" and "the preparation of the human dead for … burial" are part of the definition of "practice of funeral services,"[6] burial is not synonymous with funeral.[7]

The 1989 Session of the General Assembly enacted a new article authorizing the Board of Funeral Directors and Embalmers to regulate preneed contracts for funeral services.[8] Section 54.1-2821 specifically exempts the preneed sale of cemetery services or supplies, including preneed burial contracts that are regulated by the Cemetery Board, from the laws applicable to preneed funeral services.[9] Section 54.1-2310 defines "interment" as "all forms of final disposal of human remains including, but not limited to, earth burial, mausoleum entombment and niche or columbarium inurnment."[10] Therefore, a preneed funeral services contract does not cover burial and disposal of remains. If an individual has not obtained a preneed burial contract, § 54.1-2825 permits that individual to designate another individual to make arrangements for his burial or the disposition of his remains, including cremation.

Section 54.1-2807(B) provides, in pertinent part, that:

Except as provided in §§ 32.1-288 and 32.1-301, funeral service establishments shall not accept a dead human body from any public officer except a medical examiner, or from any public or private facility or person having a professional relationship with the decedent without having first inquired about the desires of the next of kin and the persons liable for the funeral expenses of the decedent. The authority and directions of any next of kin shall govern the disposal of the body.

"[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction."[11] Section 54.1-2807(B) prohibits a funeral home, except in limited circumstances, from accepting a corpse without "having first inquired about the desires of the next of kin" and provides that any next of kin may authorize and direct the disposal of the body.[12] The definition of "next of kin" in § 54.1-2800 creates a "broad and coequal" class of individuals.[13] Therefore, no member of the "next of kin" class listed in § 54.1-2800 has precedence over any other.

Conclusion

Accordingly, it is my opinion that the word "burial" in § 54.1-2825 is not synonymous with funeral and must be construed narrowly as authorizing the designee to make arrangements to dispose of a decedent's remains. It further is my opinion that pursuant to § 54.1-2807(B) a funeral home has a statutory duty to inquire about the desires of the next of kin, as defined by § 54.1-2800, prior to accepting a decedent's body, and the directions of "any next of kin" govern disposal of the body. Included in the nonhierarchical definition of next of kin is "any person designated to make arrangements for the disposition of the decedent's remains upon his death pursuant to § 54.1-2825."

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
6:1354; 1:941/09-011

1. See VA. CODE ANN. §§ 54.1-2820 to 54.1-2825 (2005 & Supp. 2008).
2. See Sansom v. Bd. of Supvrs., 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999); Commonwealth v. Orange Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980); Op. Va. Att'y Gen.: 2006 at 204, 205; 1999 at 10, 11.
3. Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944), quoted in Op. Va. Att'y Gen.: 2006, supra note 2, at 205; 2002 at 320, 320.
4. MIRIAM WEBSTER'S COLLEGIATE DICTIONARY 153 (10th ed. 2001).
5. Id. at 154.
6. Section 54.1-2800 (Supp. 2008).
7. See Mazur v. Woodson, 191 F. Supp. 2d 676, 681 (E.D. Va. 2002) (holding "[t]hat disposition includes burial [which] is supported by the plain meaning of the word 'bury'").
8. See 1989 Va. Acts ch. 684, at 1582, 1587-89 (adding Article 5, Chapter 28 of Title 54.1, §§ 54.1-2820 to 54.1-2825); see also § 54.1-2803(9) (Supp. 2008) (directing Board to regulate preneed funeral contracts). I note that present § 54.1-2825 is similar to the section enacted in 1989 with the exception of minor clarification regarding the notary requirement and the specific authority regarding the disposition of remains through cremation. See 1998 Va. Acts ch. 718, at 1702, 1708 (amending § 54.1-2825). Section 54.1-2825 is also referenced in certain other statutes. See § 2.2-713 (2008) (authorizing public guardian or conservator to make funeral, cremation, or burial arrangements if no one has been designated under § 54.1-2825); § 54.1-2818.1 (2005) (prohibiting cremation of dead human body without permission of medical examiner and visual identification of the deceased by certain persons, including person designated under § 54.1-2825, or specified waiting period); § 54.1-2973 (2005) (authorizing certain parties, including person designated under § 54.1-2825, to authorize and consent to postmortem examination and autopsy of decedent's body for specific purposes); see also § 57-27.3 (2007) (authorizing cemetery to accept notarized signature of one of next of kin of decedent for purpose of authorizing interment or entombment). The "next of kin" definition in § 57-27.3 is identical to that found in § 54.1-2800. Compare § 54.1-2800 (Supp. 2008) with § 57-27.3 (2007).
9. See tit. 54.1, ch. 23.1, §§ 54.1-2310 to 54.1-2342 (2005).
10. Columbarium inurnment refers to placement of urns containing human ash in a vault or similar structure. 1980-1981 Op. Va. Att'y Gen. 39, 40. I also note that a "preneed burial contract" is "a contract for the sale of property or services used in connection with interring or disposing of the remains … of a deceased human being." Section 54.1-2310 (2005).
11. Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983), quoted in 2006 Op. Va. Att'y Gen. 180, 182.
12. Siver v. Rockingham Mem'l Hosp., 48 F. Supp. 2d 608, 611 (W.D. Va. 1999).
13. Id. at 612 "[T]he instant definition of 'next of kin' opens the class concurrently to any individual listed regardless of degree of relationship to the decedent so that there may be an orderly and expeditious internment by the funeral director. That other states establish a sequential hierarchy of relatives analogous to those for distribution of an estate has no relevance here because … the General Assembly of Virginia clearly has elected to fashion a class of individuals with rights to a body that are both broad and coequal. Any person within that class has the right to possess, preserve, or bury the dead body[.]" Id. at 611-12 (emphasis in original).