Disposition of Remains Decision Authority in Texas

At a glance

Requirements one by one

Decedent's own directions

Tex. Health & Safety Code § 711.002(g) permits directions in a will, prepaid funeral contract, or signed and acknowledged writing. A later signed and acknowledged writing is needed to change them. The person with control must carry them out to the extent the estate or controller can afford it. Under § 711.002(h), directions in a will are acted on immediately without awaiting probate; good-faith action on them can remain valid even if the will is not probated or is later invalid for testamentary purposes.

Appointed decision maker

The appointment provision, § 711.002(c), requires a writing designating the controller, signed by the decedent with the signature acknowledged, plus the agent's signature before acting. Unless the writing says otherwise, a spouse's appointment as agent ends when the marriage is dissolved by divorce, annulment, or a void-marriage declaration before death. A later instrument meeting the same formalities modifies or revokes the appointment.

Family priority and equal rank

Under § 711.002(a), the default order after a designated person is surviving spouse, any one adult child, either parent, any one adult sibling, an executor or administrator, and adult next-degree kin. The words “any one” and “either one” matter: this provision does not require a majority vote for those classes. A lower class gets its right only when no higher class person holds it (§ 711.002(d)). If authority is contested, the court route below applies.

Loss or disqualification

Under § 711.002(a-1), a person's right ends when arrangements or an appointment of someone to arrange disposition are not made by the earlier of the sixth day after death notice or the tenth day after death. Authority first passes to another person of the same class, then to the next class. Under § 711.002(l), a person with the specified arrest or warrant connected to a family-violence death, or a qualifying protective-order application or order involving the decedent, is barred.

Disputes and provider reliance

Under § 711.002(k), a court with probate jurisdiction resolves disputes over who controls disposition, even if probate has not started. Under § 711.002(l-2), proceedings are expedited when the dispute involves a person barred by subsection (l). A cemetery or funeral establishment may wait for a court order or suitable confirmation of settlement. The provider rule in § 711.002(i) protects a listed provider that carries out written directions or the directions of someone representing entitlement to control.

What trips people up

The agent appointment and the decedent's own disposition directions are separate in § 711.002. A will can carry disposition directions under subsection (g), while an agent appointment must satisfy subsection (c). For a qualifying military death, § 711.002(a-2) gives a properly completed DD Form 93 priority over another written instrument; that special route is outside the ordinary family ladder in this table.

Common questions

Can an adult child act without gathering all siblings' signatures? Section 711.002(a)(3) says “any one” surviving adult child; a contest over authority belongs to the court under subsection (k).

Does a will's disposition direction wait for probate? No. Section 711.002(h) says those directions are carried out immediately without probate.

What if the first entitled person does nothing? Section 711.002(a-1) sets the earlier-of-two-dates deadline and moves authority first within the same class, then to the next class.

Statutes and sources

• Tex. Health & Safety Code § 711.002: current official text, quoted with URL and access date above.