Disposition of Remains Decision Authority in Massachusetts

At a glance

Requirements one by one

Decedent’s directions

Under 239 CMR 3.09(1)(a), an effective pre-need contract controls the arrangements it covers. For any uncovered arrangements, 239 CMR 3.09(1)(b) says the establishment “shall give effect first to any wishes” in a document the decedent signed in a witness’s presence. A court may order otherwise.

Family order and equal-rank decisions

When neither a contract nor a valid written document settles an arrangement, 239 CMR 3.09(1)(c) puts the surviving spouse before adult children, then parents, siblings, the guardian of the person at death, and another person authorized or obligated by law. If a class has multiple members, “the directions of a majority shall prevail”; a tie requires a court decision.

What trips people up

A contract can settle only some arrangements. The witnessed writing governs what it leaves open before the family order applies. Under 239 CMR 3.09(1)(a), the establishment may alter a covered contract provision only when compliance would violate applicable law or a competent court orders the change.

Common questions

Can one adult child decide when there are several? The establishment follows the majority of that class under 239 CMR 3.09(1)(c).

Does a tie move authority to the next family class? The regulation calls for a court decision when members of one class tie under 239 CMR 3.09(1)(c).

Statutes and sources

• Mass. Gen. Laws ch. 112, § 85 authorizes the board’s practice regulations: “The board is authorized to adopt and promulgate such rules and regulations for the transaction of its business and the betterment and promotion of the standards of service and practice to be followed in the profession of embalming and funeral directing, as it may deem expedient and consistent with the laws of the commonwealth;” Official text, accessed October 5, 2026.

• 239 CMR 3.09(1)(a): “(a) If a Licensed Funeral Establishment is a party to a pre-need funeral services contract, as defined in 239 CMR 4.01: Definitions, for the benefit of the deceased person, and said contract is still in effect at the time of that person's death, the terms of that contract shall control the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted for the deceased, and the final disposition of the deceased person's remains to the full extent provided in that contract. No Licensed Funeral Establishment, nor any of its agents or employees, may cancel or materially alter any of the arrangements specified in that contract, even if requested to do so by a member of the deceased person's family or any other person, unless: 1. compliance with the terms of the original contract would result in a violation of any applicable federal, state or local law or regulation; or 2. the Licensed Funeral Establishment is ordered to do so by a court of competent jurisdiction.” Official regulation, accessed October 5, 2026.

• 239 CMR 3.09(1)(b): “(b) Where there is no pre-need funeral services contract with the Licensed Funeral Establishment in effect at the time of death for the benefit of the deceased person, or to the extent that any such contract does not fully specify the nature of the funeral arrangements to be provided, said License Funeral Establishment and its agents or employees shall give effect first to any wishes of the deceased person regarding the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, and/or the final disposition of the deceased person's remains, which have been expressed in any written document which was signed by the deceased person in the presence of a witness. In the absence of an order from a court of competent jurisdiction to the contrary, said written document shall be sufficient legal authorization for implementation of the arrangements specified therein.” Official regulation, accessed October 5, 2026.

• 239 CMR 3.09(1)(c): “(c) To the extent that there is no pre-need funeral services contract in effect at the time of death for the benefit of the deceased person, and no other valid written document indicating the wishes of the deceased person with respect to the nature of the funeral goods and services to be provided, the manner in which funeral services are to be conducted, or the final disposition of the deceased person's remains, the Licensed Funeral Establishment and its agents or employees shall follow the directions of the deceased person's surviving kin, in the following order of priority: 1. the surviving spouse of the deceased; 2. the surviving adult children of the deceased; 3. the surviving parent(s) of the deceased; 4. the surviving brother(s) or sister(s) of the deceased; 5. the guardian of the person of the deceased at the time of his or her death; 6. any other person authorized or obligated by law to dispose of the remains of the deceased. If there is more than one member of a class, the directions of a majority shall prevail; in the event of a tie, the decision of a court of competent jurisdiction will be necessary. Provided, however, that with respect to receiving authorizations to release a decedent from the Office of the Chief Medical Examiner, the Office of the Chief Medical Examiner may require different or additional signatures for release.” Official regulation, accessed October 5, 2026.