Gen. 267] 267

HEALTH OCCUPATIONS

MORTICIANS ) TESTAMENTARY LAW ) AUTHORITY TO

DETERMINE DISPOSITION OF BODY ) PRE-NEED FUNERAL

CONTRACTS 

February 28, 1994

Mr. Erich W. March

President

State Board of Morticians

The State Board of Morticians has requested our opinion on

several questions relating to the disposition, including cremation, of

the remains of a deceased person. Specifically, you posed the

following issues:

1. Who is the “next of kin” for purposes of making funeral

arrangements and final dispositions, including cremations, for a

deceased human body? What happens in the event of a dispute

among the next of kin with regard to final disposition? Does the

person who pays for the funeral have the authority to decide about

the final arrangements, even if another family member disagrees?

If there are no next of kin, who has the authority to make

arrangements? Must a personal representative be appointed? 

2. What authority does the personal representative have in

making final disposition arrangements, including cremation, if next

of kin disagree with the personal representative’s decision?

3. May a seller of a pre-need contract that includes

cremation services refuse to carry out that contract based upon the

objections of the next of kin? May a pre-need contract be made for

a cremation with a third party as beneficiary of the contract?

For the reasons stated below, we conclude as follows:

1. The surviving spouse has the paramount right to make

funeral arrangements for the deceased. If there is no surviving

spouse, as a general rule, the right is in the next of kin in the order

of their relation to the decedent: adult children, then parents, then

brothers and sisters, then more distant kin. If there are no next of
268 [79 Op. Att’y

kin, someone else with a special relationship to the deceased ) for

example, a close friend or neighbor ) may contract for funeral

arrangements, including subsequent burial or cremation. If no one

else makes arrangements, the owner of the property where the

deceased died might have to assume that responsibility. A personal

representative need not be appointed for the sole purpose of making

arrangements for the disposition of a body.

In the absence of a statute or regulation providing for a

different decision-making mechanism, a dispute among relatives

would be resolved by the simple fact of who contracts with the

provider of funeral services, because that person is entitled to make

the decisions about the arrangements. 

2. A personal representative, absent testamentary authority,

does not automatically receive possession of the corpse or the right

to decide its disposition, whether by burial or cremation. Whenever

the duty to provide for the disposition of the body is placed by will

upon the personal representative, the representative may have the

right to the custody of the body solely for that purpose. Maryland

law does not give guidance about the personal representative’s duty

to take into account objections from next-of-kin. If the personal

representative contracted with the provider of funeral services, the

personal representative’s decision would control.

3. A pre-need contract is a contract between the licensee and

the deceased and may not be breached merely because the buyer of

the contract is deceased or the next of kin objects to the services )

including, if it be so, cremation ) purchased by the deceased. A

party may enter into a pre-need contract for the benefit of a third

party and select cremation as the form of disposition. 

I

Statutory Background

Under §7-317(a)(11) of the Health Occupations (“HO”)

Article, Maryland Code, a licensee who “refuses to surrender

custody of a dead human body on the demand of a person who is

entitled to its custody ...” is subject to discipline. HO §7-406

provides that “a licensee shall maintain a complete file of a

cremation that includes the signature of the next of kin, person

identifying the body, or person responsible for disposition....” The
Gen. 267] 269

 We note that Senate Bill 750, “Funeral Directors ) Cremation 1

Decisions,” would clarify the law regarding the disposition of remains,

including by means of cremation.

Maryland Morticians Act indicates neither who is entitled to

“custody” nor who is “responsible for disposition.” 

In addition, §5-501 of the Health-General (“HG”) Article,

Maryland Code, provides that “a person may not cremate a body

until it has been identified by ... a person who is authorized to

arrange for final disposition of the body.” HG §5-406 notes that

“with respect to an unclaimed body, any relative or friend of the

deceased may claim the body and on paying the costs of moving and

embalming the body, shall receive it.” These sections fail to declare

who has the right to authorize final disposition. 

1

II

Duty to Arrange Disposition

A. Priority of Possession

There is a paucity of authority in Maryland regarding the right

to control the disposition of the remains of a deceased person. In

Untersizung Verein v. Posner, 176 Md. 332, 4 A.2d 743 (1939), the

Court of Appeals held that the surviving spouse or the next of kin

has a quasi-property right in the body in the absence of testamentary

disposition. 176 Md. at 337. This right is not a property right within

the general meaning of that term, but exists for the purpose of

determining who is to have the custody of the body in preparing it

for burial. Id. In Dougherty v. Mercantile Safe Dep. & Trust Co.,

282 Md. 617, 387 A. 2d 244 (1978), the Court held that the

surviving spouse has a paramount right to possession of the body

and to decide the place of sepulture. Although the Court did not

determine who receives possession in the absence of a surviving

spouse, it cited approvingly Pettigrew v. Pettigrew, 207 Pa. 313, 56

A. 878 (1904), the paradigm case on the priority of possession of a

dead human body. The Pennsylvania Supreme Court summarized

the legal principles as follows: 

First, the paramount right is in the surviving

husband or widow, and, if the parties are
270 [79 Op. Att’y

 The spousal priority referred to in the text might be lost if the 2

(continued...)

living in the normal relations of marriage, it

will require a very strong case to justify a

court in interfering with the wish of the

survivor. Secondly. If there is no surviving

husband or wife, the right is in the next of kin

in the order of their relation to the decedent, as

children of proper age, parents, brothers and

sisters, or more distant kin, modified, it may

be, by circumstances of special intimacy or

association with the decedent. Thirdly. How

far the desires of the decedent should prevail

against those of a surviving husband or wife

is an open question, but as against remoter

connections, such wishes especially if strongly

and recently expressed, should usually prevail.

56 A. at 880. In a number of jurisdictions, courts have endorsed this

hierarchical approach. See Rhodes Mut. Ins. Co. v. Moore, 586 So.

2d 886 (Ala. 1991); Brown v. Matthews Mortuary, Inc., 801 P.2d 37

(Idaho 1990); Spardaro v. Catholic Cemeteries, Inc., 330 N.W. 2d

116 (Minn. 1983); Hood v. Spratt, 357 So. 2d 135 (Miss. 1978);

Felipe v. Vega, 570 A.2d 1028 (N.J. Super Ch. 1989); Dumouchelle

v. Duke Univ., 317 S.E. 2d 100 (N.C. App. 1984); Sullivan v.

Catholic Cemeteries, Inc., 317 A.2d 430, 432 (R.I. 1974); Estes v.

Woodlawn Memorial Park, Inc., 780 S.W. 2d 759, 762 (Tenn. App.

1989); Whitehair v. Highland Memory Gardens, Inc., 327 S.Ed. 2d

438, 443 (W.Va. 1985). In others, statutes control the matter. See,

e.g., West Ann. Cal. Health & Safety Code §7100; Conn. Gen. Stat.

§45-253; Tex. Health & Safety Code Ann. §711.002.

Most recently, in a case involving an allegedly wrongful

disinterment, the Court of Special Appeals noted that the “immediate

next-of-kin” are “entitled to possession of the body for purposes of

burial ...” ) if there is no surviving spouse, usually a surviving

parent or child. Walser v. Resthaven Memorial Garden, 98 Md.

App. 371, 386, 633 A.2d 466 (1993).

To summarize, the primary right to possession or custody of a

dead human body is in the surviving spouse. If the decedent and his 2
Gen. 267] 271

 (...continued) 2

spouse had “unclean hands” ) that is, played an active role in the death of

the decedent. See H.Y. Bernard, The Law of Death and the Disposal of

the Dead 12 (1966).

See Part IIC below for a discussion of responsibility when no one 3

comes forward to take possession of the body.

 In your letter you posed the following example: The grandmother 4

of a teenager whom she raised pays for services, including the burial, and

selects the funeral home at which the services are to be held. The mother

of the teenager objects to the use of that home but neither demands the

body nor pays for alternate arrangements. In that situation, the mother,

while having a higher priority to possession of the body than the

grandmother, waived her right to possession by not making a demand for

possession of the body or arrangements for its interment.

or her spouse were separated or divorced at the time of the

decedent’s death, if there is no surviving spouse, or if the surviving

spouse waives his or her right to possession of the body and to

control the interment, the next of kin, typically the children, would

receive the right of possession. See 22 Am. Jur. 2d Dead Bodies

§25, at 22 (1988). If there are no next of kin, someone who enjoyed,

to quote the Pennsylvania Supreme Court in Pettigrew, “special

intimacy or association with the decedent” ) a close friend or

neighbor, for example ) may take possession. Moreover, any 3

person who has the right to possession of the body may waive that

right by inaction in regard to the disposition of the body. 

4

B. Disputes Among Next of Kin

Your letter indicates that, under the usual practice in the

mortuary science industry, whoever pays for the funeral has the

ultimate authority to decide about final arrangements. HO §7-404(a)

provides that “[a]t the time of licensee makes funeral arrangements,

the licensee shall give the individual who requested the funeral

arrangements a contract ....” The person who contracts with the

funeral director or mortician for the services would exercise the

authority to make the decisions about the arrangements. We see no

legal problem with the industry practice. 

In the event of a conflict among the next of kin in the same

class ) for example, the daughter wants a burial for the deceased but

the son wants cremation ) in the absence of any law on the subject,
272 [79 Op. Att’y

 As discussed in Part IID below, the individual giving the 5

instructions should follow the wishes of the deceased.

 Under some circumstances, a physician who follows the 6

recommendation of a patient care advisory committee is afforded

immunity for doing so. HG §5-605(b)(1). A statute would be necessary

if funeral directors and morticians were to enjoy similar immunity if they

followed the recommendation of a dispute-resolution group.

we can only conclude that a licensee would be justified in following

the instructions of whoever contracts for the particular service.5

Moreover, we see no basis for a distinction in this regard concerning

cremation. If the next of kin who gives the instruction is to be

ousted from that role, a court would have to do so.

The Board of Morticians might wish to consider establishing,

by regulation, some form of dispute-resolution mechanism along the

lines of the patient care advisory committees that hospitals and

nursing homes are required to form. See HG §19-370. Just as a

patient care advisory committee can help family members reach

accord about medical treatment choices for an incapacitated relative,

so a similar entity might help resolve family disagreements about the

disposition of a relative’s body.6

As explained in Part III below, a personal representative is not

a referee of family disagreements. Moreover, a personal

representative is not to be appointed merely in an effort to give

greater weight to a potentially controversial decision. Your letter

suggests, for example, that some funeral directors and morticians are

apprehensive of cremation decisions made by someone other than

the next of kin. In some such situations, members of the mortuary

science industry have contacted their county Register of Wills in

order to open a small estate to get a letter of administration before

cremating. See §5-602 of the Estates and Trust Article, Maryland

Code. 

An estate should be opened only for reasons authorized by the

Estates and Trusts Article. It is not a proper use of the probate

process to use that process merely to attempt to shield a licensee

against potential liability. If a neighbor or friend of the deceased

wants a cremation, it is sufficient for that person to certify to the best

of his or her knowledge that the deceased had no next of kin.
Gen. 267] 273

 Some jurisdictions have provided, through statute, who has the 7

duty to dispose of a dead human body. For example, §36-831(A) of the

Public Health and Safety Article of the Arizona Revised Statutes provides

for a priority ranking of those who have “[t]he duty of burying the body

of or providing other funeral and disposition arrangements for a dead

person ....” The county in which the death occurs has the residual duty.

See also Cal. Health & Safety Code §7102; Ohio Public Welfare Stat.

§5101.521; N.J. Stat. §40A:9-49; 21 Okla. Stat. §11152. Maryland does

not have a similar statute. 

C. Residual Duty

“Everyone has a right to a decent burial.” McKibben v.

McKibben, 119 N.Y.S. 2d 685, 687 (Mun. Ct. 1952). “This right

existing, casts upon some one the duty of seeing that it is accorded,”

even if a person dies without money to provide for his or her own

burial. Id.

At common law, the obligation of providing a decent burial for

the decedent’s body was imposed on the person under whose roof

death took place. In McKibben, the court held that the daughter, 7

under whose roof the father was living at the time of his death,

without a surviving spouse, had an obligation of seeing that the

father was decently buried. Id. The court found no legal duty on the

part of the brother, however, to contribute anything to the cost of the

burial, because “[t]he corpse did not die under his roof.” 119 N.Y.S.

2d at 688. The court opined further that “there was no duty upon

him to bury his father and in the absence of any duty, the court does

not see how he can be charged with any expense by the person with

whom the primary duty does lie in this case, ... [the daughter].” Id.

The duty to provide for the disposition of the body does not

necessarily include the expense of the burial. These two duties are

separate and distinct. Phillips v. Home Undertakers, 138 P.2d 550,

552 (Okla. 1943). See Griffen v. Cole, 131 P.2d 989 (Ariz. 1942)

(statute imposing duty of burial upon various persons creates no

financial liability, but merely points out upon whom duty of burial

devolves). For example, while a husband may be given the duty of

providing the arrangements for the disposition of his wife, her estate

is financially liable for the arrangements. Id. If there are no next of
274 [79 Op. Att’y

Article 88A, §62A of the Code identifies circumstances under 8

which the State will bear the cost of funeral expenses for a recipient of

benefits under certain public assistance programs.

 Factors affecting the weight include: whether the parties were 9

living together in normal relations or marriage at the time of the

decedent’s death, the strength of the decedent’s expressed desires, if the

desires were expressed relatively close to the day of his death, close ties

or special intimacy between the decedent and a particular claimant, and

the religious beliefs of the decedent and the surviving spouse or next of

kin. The Law of Death at 17; 22A Am. Jur. 2d Dead Bodies §30, at 26.

kin and no estate, however, the ultimate financial liability may fall

upon those charged with the duty. 

8

D. Preference of the Deceased

It is generally recognized that a person has the right to

determine the disposition of his or her body after death. Estes v.

Woodlawn Mem. Park, 780 S.W.2d at 762 (citing Fidelity Union

Trust Co. v. Heller, 16 N.J. Super. 285, 84 A.2d 485 (1951)). There

is, however, a division among jurisdictions as to whether the wishes

of the deceased are paramount to that of a surviving spouse or next

of kin. Some courts take the position that a preference expressed by

a decedent with regard to the disposition of his or her dead body

should normally be given precedence over other interests. See

Holland v. Metalious, 198 A.2d 654 (N.H. 1964); Matter of Estate

of Moyer, 577 P.2d 108 (Utah 1978). Other jurisdictions insist that

the decedent’s preference is subordinate to the wishes of his or her

surviving spouse or next of kin. In re Baskin’s Appeal from

Probate, 484 A.2d 934 (Conn. 1984); Mexican v. Circle Bear, 370

N.W. 2d 737 (S.D. 1985). A third position is 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.9

The better view, in our opinion, is that a person should have

the right to control the disposition of his or her body after death. As

explained in Part IV below, a pre-need contract allows for this type

of control. Even in the absence of such a contract, however, we

believe that the deceased’s wishes are entitled to great weight in

determining the disposition of his or her body. The point of view of

the surviving spouse or next of kin should not be ignored,
Gen. 267] 275

particularly in interpreting the wishes of the deceased, but if there is

clear evidence of what the deceased wanted, that course of action

should be followed. Just as someone may make a binding

posthumous gift of organs or tissue, so the individual ought to be

accorded the right to decide on the method of disposition of his or

her remains. 

III

Role of the Personal Representative

As noted in Part IIA above, it is well-settled that there is no

property right as such in a body. Spiegel v. Evergreen Cemetery Co.,

117 N.J. Law 90, 186 A. 585 (1936); Pettigrew v. Pettigrew, 207 Pa.

313, 56 A. 878 (1904); H. Y. Bernard, The Law of Death and the

Disposal of the Dead 12 (1966) (cited hereafter as “The Law of

Death”). “That a dead body is not part of the assets of the estate

may well be admitted.” Doughtery, 282 Md. at 620 n.2. See also

Fischer’s Estate v. Fischer, 117 N.E. 2d 855 (Ill. App. 1954);

Fidelity Union Trust Co. v. Heller, 16 N.J. Super 285, 84 A.2d 485

(1951); Matter of Estate of Moyer, 577 P.2d 108 (Utah 1978). A

personal representative, absent testamentary authority, does not

receive possession of the corpse. Whenever the duty to bury a

person is placed upon the personal representative, the representative

has the right to the custody of the body solely for that purpose.

If the personal representative receives such testamentary

authority, you ask whether it must be exercised with regard for the

wishes of the family and relatives. While there is no law in

Maryland on this subject, other jurisdictions appear to provide that

the personal representative must consider the wishes and desires of

the surviving spouse or the next of kin. The rationale is that the

body is not an asset of the estate and the personal representative

might be a creditor of the estate, a “soulless corporation,” or a

stranger. The Law of Death at 16. Additionally, “someone having

a less formal relation to the deceased should be empowered to decide

and act.” The Law of Death at 16 n.12. Deciding the place or

manner of the final resting place of the body is an intimate

responsibility and should be that of a relative. See Children’s

Hospital v. Burney, 47 N.E. 401 (1897).

An Illinois appellate court has held that, if the executor has the

authority to dispose of the body, his or her powers only extend to the

payment of the necessary funeral and burial charges. The executor’s
276 [79 Op. Att’y

duties do not affect the right of the decedent’s spouse or next of kin

to control or decide the arrangements of the interment of the body.

Fischer’s Estate v. Fischer, 117 N.E. 2d at 858. The Connecticut

Supreme Court likewise has held that, whatever right, if any, that a

personal representative may have to dispose of the decedent’s body,

he or she may not do so with unfettered discretion. See Givson v.

Connecticut Medical Examining Board, 104 A.2d 890 (Conn. 1954).

In that case, the executor made arrangements for the transmission of

the decedent’s body to a medical school for anatomical purposes,

despite the deceased’s expressed desires to be buried. Further, he

did not consult the deceased’s next of kin concerning the disposition

of the deceased. 104 A.2d at 895. The executor was held to have no

authority to insist on this arrangement. Id.

IV

Pre-Need Contract

A. General Nature

A pre-need contract is “an agreement between a consumer and

a licensed funeral director, licensed mortician, or surviving spouse

to provide any goods or services purchased prior to the time of

death.” HO §7-101(p). A pre-need agreement is unquestionably a

contract, that is, “a deliberate agreement between competent parties

upon legal consideration, to do, or to abstain from doing some act.”

See Miller v. Palmer, 58 Md. 451 (1881). Moreover, Maryland

follows the objective law of contracts. Jenkins v. Karlton, 329 Md.

510, 525, 620 A.2d 894 (1993); Bruce v. Dyer, 309 Md. 421, 439-

40, 524 A.2d 777 (1987). It is a well-settled principle of contract

law that unless the contract is for personal services or by its express

provisions terminates upon the death of a party to it, it survives the

death of a party. Burka v. Patrick, 34 Md. App. 181, 185, 366 A.2d

1070 (1976).

A pre-need contract is between the licensed funeral director or

mortician and the deceased. It cannot be breached merely because

the buyer of the contract is deceased or because the surviving spouse

or next of kin objects to the services chosen by the deceased. 
Gen. 267] 277

B. Third Party Pre-Need Contract

HO §7-405(c)(i) provides that a pre-need contract shall contain

“[t]he name of each party to the contract and, if the beneficiary is an

individual other than the buyer, the name of the beneficiary of the

contract ....” The statute thus expressly recognizes that third party

pre-need contracts are sometimes arranged, presumably when the

beneficiary of the contract is not able to do so personally. See 72

Opinions of the Attorney General 141, 142 n.4 (1987). Subsection

(ii) requires “a description of any services and merchandise to be

provided under the pre-need contract ....” HO §7-101(q)(1) defines

goods and services as “as service, including any form of preservation

and disposition, that a mortician normally provides in the ordinary

course of business ....” (Emphasis added.)

The statute is clear: a licensed funeral director or mortician

may enter into a pre-need contract with a party other than one for

whom the services will be provided. Additionally, cremation is a

form of preservation and disposition normally provided by a

mortician. Therefore, an individual may enter into a pre-need

contract for the benefit of a third party and select cremation as the

form of disposition. 

V

Conclusion

In summary, it is our opinion that: 

1. The surviving spouse has the paramount right to make

funeral arrangements for the deceased. If there is no surviving

spouse, as a general rule, the right is in the next of kin in the order

of their relation to the decedent: adult children, then parents, then

brothers and sisters, then more distant kin. If there are no next of

kin, someone else with a special relationship to the deceased ) for

example, a close friend or neighbor ) may contract for funeral

arrangements, including subsequent burial or cremation. If no one

else makes arrangements, the owner of the property where the

deceased died might have to assume that responsibility. A personal

representative need not be appointed for the sole purpose of making

arrangements for the disposition of a body.
278 [79 Op. Att’y

In the absence of a statute or regulation providing for a

different decision-making mechanism, a dispute among relatives

would be resolved by the simple fact of who contracts with the

provider of funeral services, because that person is entitled to make

the decisions about the arrangements. 

2. A personal representative, absent testamentary authority,

does not automatically receive possession of the corpse or the right

to decide its disposition, whether by burial or cremation. Whenever

the duty to provide for the disposition of the body is placed by will

upon the personal representative, the representative may have the

right to the custody of the body solely for that purpose. Maryland

law does not give guidance about the personal representative’s duty

to take into account objections from next-of-kin. If the personal

representative contracted with the provider of funeral services, the

personal representative’s decision would control.

3. A pre-need contract is a contract between the licensee and

the deceased and may not be breached merely because the buyer of

the contract is deceased or the next of kin objects to the services )

including, if it be so, cremation ) purchased by the deceased. A

party may enter into a pre-need contract for the benefit of a third

party and select cremation as the form of disposition. 

J. Joseph Curran, Jr.

Attorney General

Kimberly Smith Ward

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

Senate Bill 750, referred to in note 1 above, was enacted as

Chapter 517 of the Laws of Maryland 1994. This legislation

resolved many of the issues discussed in this opinion.