Disposition of Remains Decision Authority in California

At a glance

Requirements one by one

Decedent's own directions

Cal. Health & Safety Code § 7100.1(a) protects clear written directions when effective payment arrangements are made, unless the decedent signed and dated a statement allowing changes. If only interment or funeral goods and services are funded, subsection (b) limits the unfunded wishes to available estate assets or costs another controller agrees to assume. Under § 7100.1(c), directions in a will are carried out immediately even if the will's probate status or validity on other questions remains open.

Appointed decision maker

Under § 7100(a)(1), an agent under a health-care power of attorney is first in the ordinary priority ladder. Probate Code § 4683(b)(3) expressly permits that agent, subject to limitations in the document, to direct disposition after death. A written advance directive must be dated, signed, and acknowledged before a notary or signed by two qualified witnesses under § 4673(a); electronic directives require notarization under subsection (b). Probate Code § 4674(a)–(e) requires adult witnesses, bars the appointed agent from witnessing, and requires one witness who is neither related to the patient nor entitled to an estate share. Under § 4675(a), a skilled-nursing-facility patient also needs a patient advocate or ombudsman to witness.

Family priority and equal rank

The next classes under § 7100(a) are a competent spouse, competent adult children, competent parent or parents, competent adult siblings, other competent adult kin by degree, specified conservators, and the public administrator. For multiple adult children, siblings, or same-degree kin, the statute uses a majority, but a smaller group may act after reasonable notice efforts if it knows of no opposition from the majority. A remaining competent parent may act after unsuccessful reasonable efforts to find an absent parent.

Loss of authority and disqualification

Health and Safety Code § 7105(a) moves authority to the next rank if an entitled person neither acts nor delegates within seven days after the right devolves, except that the spouse has ten days. Subsection (b) applies the same windows after an unsuccessful reasonable search. Under § 7100(b), authority shifts from a person charged with specified homicide offenses connected to the death when the funeral director or cemetery knows of the charges; dismissal or acquittal restores it.

Equal-rank disputes and provider reliance

If equal-rank people do not agree within seven days, § 7105(c) permits an equal-rank person or a funeral establishment or cemetery holding the remains to petition the superior court in the decedent's residence county or the county where the remains are located. The court chooses a controller and an alternate order if that person then fails to act. Under § 7100(e), the statute directs prompt performance of the decedent's or entitled person's instructions. Under § 7100(f), a funeral director or cemetery authority is protected for following those instructions. Under § 7100(c), the statute gives a provider a separate fallback route after reasonable inquiry and written notice to the public administrator.

What trips people up

A health-care power-of-attorney agent's postdeath authority under Probate Code § 4683(b)(3) is distinct from the decedent's own binding directions under Health and Safety Code § 7100.1. Section 7105(c)'s court petition addresses an equal-rank deadlock; a smaller group that has reasonably notified others and knows of no majority objection may already act under § 7100(a)(3), (5), or (6).

Common questions

Does one adult child always need every sibling's agreement? No. Section 7100(a)(3) ordinarily calls for a majority, but permits fewer after reasonable notice efforts when they know of no majority opposition.

When can a surviving spouse lose the right by waiting? Section 7105(a) gives the spouse ten days after the right devolves to act or delegate; most other listed classes have seven days.

Can a person charged in the death regain authority? Section 7100(b)(2) restores the right if the relevant charges are dropped or the person is acquitted.

Statutes and sources

• Cal. Health & Safety Code §§ 7100, 7100.1, 7105 and Cal. Prob. Code §§ 4673–4675, 4683: current official text, quoted with section URLs and access dates above.