2023 New York Laws › PBH - Public Health › Article 42 - Cadavers › Title 1 - Disposition › 4201 - Disposition of Remains; Responsibilty Therefor.

§ 4201. Disposition of remains; responsibility therefor. 1. As used in
this  section,  the  following  terms shall have the following meanings,
unless the context otherwise requires:
(a) "Cremation" means the incineration of human remains.
(b) "Disposition" means the care,  disposal,  transportation,  burial,
cremation,  natural  organic  reduction  or  embalming  of the body of a
deceased person, and associated measures.
(c) "Domestic partner" means a person who,  with  respect  to  another
person:
(i)  is  formally  a  party  in  a  domestic  partnership  or  similar
relationship with the other person, entered into pursuant to the laws of
the United States or  any  state,  local  or  foreign  jurisdiction,  or
registered  as  the  domestic  partner  of  the person with any registry
maintained by the employer of either party or any  state,  municipality,
or foreign jurisdiction; or
(ii)  is  formally recognized as a beneficiary or covered person under
the other person's employment benefits or health insurance; or
(iii) is dependent or mutually interdependent on the other person  for
support,  as evidenced by the totality of the circumstances indicating a
mutual intent to be domestic partners  including  but  not  limited  to:
common  ownership  or joint leasing of real or personal property; common
householding, shared income or  shared  expenses;  children  in  common;
signs  of intent to marry or become domestic partners under subparagraph
(i)  or  (ii)  of  this  paragraph;  or  the  length  of  the   personal
relationship of the persons.
Each  party  to  a  domestic partnership shall be considered to be the
domestic partner of  the  other  party.  "Domestic  partner"  shall  not
include a person who is related to the other person by blood in a manner
that would bar marriage to the other person in New York state. "Domestic
partner"  shall  also  not  include any person who is less than eighteen
years of age or who is the adopted child of the other person or  who  is
related  by  blood in a manner that would bar marriage in New York state
to a person who is the lawful spouse of the other person.
(c-1) "Natural organic reduction"  means  the  contained,  accelerated
conversion of human remains to soil.
(d) "Person" means a natural person eighteen years of age or older.
2.  (a)  The  following  persons in descending priority shall have the
right to control the  disposition  of  the  remains  of  such  decedent;
provided  that  if  there are more than two members of a class listed in
subparagraph (iii), (v), or (vii) of this paragraph entitled to  control
the  disposition  of  remains  of  a  decedent, the disposition shall be
determined by a majority of the members of the class who are  reasonably
available:
(i) the person designated in a written instrument executed pursuant to
the provisions of this section;
(ii) the decedent's surviving spouse;
(ii-a) the decedent's surviving domestic partner;
(iii)  any  of the decedent's surviving children eighteen years of age
or older;
(iv) either of the decedent's surviving parents;
(v) any of the decedent's surviving siblings eighteen years of age  or
older;
(vi) a guardian appointed pursuant to article seventeen or seventeen-A
of  the  surrogate's  court  procedure  act or article eighty-one of the
mental hygiene law;
(vii) any person eighteen years of age or older who would be  entitled
to  share in the estate of the decedent as specified in section 4-1.1 of

the  estates,  powers  and  trusts  law,  with  the  person  closest  in
relationship having the highest priority;
(viii) a duly appointed fiduciary of the estate of the decedent;
(ix)  a  close  friend or relative who is reasonably familiar with the
decedent's wishes, including the decedent's religious or moral  beliefs,
when  no  one  higher  on this list is reasonably available, willing, or
competent to act, provided that  such  person  has  executed  a  written
statement pursuant to subdivision seven of this section; or
(x)  a  chief  fiscal  officer  of  a county or a public administrator
appointed pursuant to article twelve  or  thirteen  of  the  surrogate's
court  procedure  act,  or  any  other  person  acting  on behalf of the
decedent, provided that such person has  executed  a  written  statement
pursuant to subdivision seven of this section.
(b)  If a person designated to control the disposition of a decedent's
remains, pursuant to this  subdivision,  is  not  reasonably  available,
unwilling  or not competent to serve, and such person is not expected to
become reasonably available, willing or competent, then those persons of
equal priority and,  if  there  be  none,  those  persons  of  the  next
succeeding  priority  shall have the right to control the disposition of
the decedent's remains.
(c) The person in control of disposition, pursuant  to  this  section,
shall  faithfully carry out the directions of the decedent to the extent
lawful  and  practicable,  including  consideration  of  the   financial
capacity of the decedent's estate and other resources made available for
disposition  of  the remains. The person in control of disposition shall
also dispose of the decedent in a manner appropriate to  the  moral  and
individual beliefs and wishes of the decedent provided that such beliefs
and  wishes  do  not  conflict  with the directions of the decedent. The
person in control of disposition may seek to recover any  costs  related
to  the  disposition  from  the  fiduciary  of  the decedent's estate in
accordance with section eighteen hundred eleven of the surrogate's court
procedure act.
(d) No funeral director, undertaker, embalmer or  no  person  with  an
interest  in,  or  who  is  an  employee  of  any funeral firm, cemetery
organization  or  business  operating  a  crematory,   natural   organic
reduction facility, columbarium or any other business, who also controls
the  disposition  of  remains  in  accordance  with  this section, shall
receive  compensation  or  otherwise  receive  financial   benefit   for
disposing of the remains of a decedent.
(e)  No  person  who: (1) at the time of the decedent's death, was the
subject of an order of protection protecting the decedent;  or  (2)  has
been arrested or charged with any crime set forth in article one hundred
twenty-five  of  the  penal  law  as  a  result  of any action allegedly
causally related to the death of the decedent shall have  the  right  to
control  the  disposition  of  the remains of the decedent. However, the
application of this paragraph in a particular  case  may  be  waived  or
modified  in  the  interest  of  justice  by order of (i) the court that
issued the order of protection or in which the criminal  action  against
the  person  is  pending,  or  a  superior  court  in which an action or
proceeding under the domestic relations law  or  the  family  court  act
between  the  person  and  the  decedent  was pending at the time of the
decedent's death, or (ii)  if  proceeding  in  that  court  would  cause
inappropriate delay, a court in a special proceeding.
3.  The written instrument referred to in paragraph (a) of subdivision
two of this section may be in substantially the following form, and must
be signed  and  dated  by  the  decedent  and  the  agent  and  properly
witnessed:
APPOINTMENT OF AGENT TO CONTROL DISPOSITION OF REMAINS

I, _____________________________________________________________________
Your name and address)
being of sound  mind,  willfully  and  voluntarily  make known my desire
that, upon my death, the disposition of my remains shall be controlled
by ___________________________________________________________________ .
(name of agent)
With respect to that subject only, I hereby appoint such  person  as  my
agent with respect to the disposition of my remains.
 
SPECIAL DIRECTIONS:
 
Set forth below are any special directions limiting the power granted to
my agent as well as any instructions or wishes desired to be followed in
the disposition of my remains:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Indicate  below  if  you  have  entered  into  a  pre-funded  pre-need
agreement subject to section four hundred  fifty-three  of  the  general
business law for funeral merchandise or service in advance of need:
[] No, I have not entered into a pre-funded pre-need agreement subject
to section four hundred fifty-three of the general business law.
[] Yes, I have entered into a pre-funded pre-need agreement subject to
section four hundred fifty-three of the general business law.
 
________________________________________________________________________
(Name  of funeral firm with which you entered into a pre-funded pre-need
funeral agreement to provide merchandise and/or services)
 
AGENT:
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________
 
SUCCESSORS:
If my agent dies, resigns, or is unable to act, I hereby  appoint  the
following  persons  (each  to  act  alone and successively, in the order
named) to serve as my agent to control the disposition of my remains  as
authorized by this document:
1. First Successor
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________
 
2. Second Successor
Name: __________________________________________________________________
Address: _______________________________________________________________
Telephone Number: ______________________________________________________
 
DURATION:
 
This appointment becomes effective upon my death.
PRIOR APPOINTMENT REVOKED:
I  hereby  revoke  any  prior appointment of any person to control the
disposition of my remains.
 
Signed this                    day of          ,            .
________________________________________________________________________
(Signature of person making the appointment)
 
Statement by witness (must be 18 or older)
 
I declare that the person who executed this document is personally known
to  me  and  appears  to  be of sound mind and acting of his or her free
will. He or she signed (or asked another to sign for him  or  her)  this
document in my presence.
 
Witness 1: __________________
(signature)
 
Address: _________________
 
Witness 2: _________________
(signature)
 
Address: _________________
 
ACCEPTANCE AND ASSUMPTION BY AGENT:
1.  I  have  no  reason to believe there has been a revocation of this
appointment to control disposition of remains.
2. I hereby accept this appointment.
Signed this               day of           ,                .
_______________________
Signature of agent)
4. (a) In the  absence  of  a  written  instrument  made  pursuant  to
subdivision  three  of this section, the designation of a person for the
disposition of one's remains or directions for the disposition of  one's
remains in a will executed pursuant to the laws of the state of New York
prior  to  the  effective  date  of  this section, or otherwise executed
pursuant to the laws of a jurisdiction outside the state  of  New  York,
shall  be:  (i) considered reflective of the intent of the decedent with
respect  to  the  disposition  of  the  decedent's  remains;  and   (ii)
superseded  by  a  written  instrument subsequently executed pursuant to
subdivision three of this section, or by any other subsequent act by the
decedent evidencing a specific intent to supersede  the  designation  or
direction  in  such  a  will  with  respect  to  the  disposition of the
decedent's remains. All actions taken reasonably and in good faith based
upon such authorizations and directions  regarding  the  disposition  of
one's remains in such a will shall be deemed valid regardless of whether
such a will is later probated or subsequently declared invalid.
(b)   In  the  absence  of  a  written  instrument  made  pursuant  to
subdivision three of this section, the designation of a person  for  the
disposition  of one's remains or directions for the disposition of one's
remains in a will executed pursuant to the laws of the state of New York
on or after the effective date of this section, shall  be  considered  a
reflection of the intent of the decedent with respect to the disposition
of  the decedent's remains, provided that the person who represents that
he or she is entitled to control  the  disposition  of  remains  of  the
decedent  has  complied  with  subdivision  five  and  paragraph  (a) of

subdivision seven of this section and  signed  a  written  statement  in
accordance with paragraph (b) of subdivision seven of this section.
4-a. A written instrument under this section may limit the disposition
of  remains  agent's authority to consent to organ or tissue donation or
designate another person to do so, under  article  forty-three  of  this
chapter.  Failure to state wishes or instructions shall not be construed
to imply a wish not to donate.
5. A written instrument executed under this section shall  be  revoked
upon  the  execution by the decedent of a subsequent written instrument,
or by any other subsequent act by the  decedent  evidencing  a  specific
intent  to  revoke  the  prior  written  instrument  and  directions  on
disposition  and  agent  designations  in  a  will  made   pursuant   to
subdivision  three of this section shall be superseded by a subsequently
executed will or written instrument made pursuant to this section, or by
any other subsequent act of the decedent evidencing a specific intent to
supersede  the  direction  or  designation.  The  designation   of   the
decedent's  spouse  or  domestic  partner  as  an  agent  in  control of
disposition of remains shall  be  revoked  upon  the  divorce  or  legal
separation  of  the  decedent and spouse, or termination of the domestic
partnership, unless the decedent specified in writing otherwise.
6. A person acting reasonably and in good faith, shall not be  subject
to any civil liability for:
(a)  representing  himself or herself to be the person in control of a
decedent's disposition;
(b) disposing of a decedent's remains  if  done  with  the  reasonable
belief that such disposal is consistent with this section; or
(c) identifying a decedent.
7.  No  cemetery organization, business operating a crematory, natural
organic  reduction   facility,   or   columbarium,   funeral   director,
undertaker,  embalmer,  or funeral firm shall be held liable for actions
taken reasonably and in good faith to carry out the  written  directions
of  a  decedent  as stated in a will or in a written instrument executed
pursuant to this section. No cemetery organization, business operating a
crematory, natural organic reduction facility, or  columbarium,  funeral
director,  undertaker, embalmer or funeral firm shall be held liable for
actions taken reasonably and in good faith to carry out  the  directions
of  a person who represents that he or she is entitled to control of the
disposition of remains, provided that such action is  taken  only  after
requesting and receiving written statement that such person:
(a)  is  the  designated agent of the decedent designated in a will or
written instrument executed pursuant to this section; or
(b) that he or she has no  knowledge  that  the  decedent  executed  a
written  instrument  pursuant  to  this  section  or  a  will containing
directions for the disposition of his  or  her  remains  and  that  such
person  is  the  person  having  priority  under subdivision two of this
section.
8. Every dispute relating to the  disposition  of  the  remains  of  a
decedent shall be resolved by a court of competent jurisdiction pursuant
to a special proceeding under article four of the civil practice law and
rules.  No  person providing services relating to the disposition of the
remains of a decedent shall be held liable for refusal to  provide  such
services,  when control of the disposition of such remains is contested,
until such person receives a court order or other form  of  notification
signed  by  all  parties  or  their legal representatives to the dispute
establishing such control.
9. This section does not supersede, alter or abridge any provision  of
section  four  hundred  fifty-three  of the general business law. In the

event of a conflict or ambiguity, the provisions of section four hundred
fifty-three of the general business law shall govern.
10. This section does not supersede, alter or abridge any provision of
article  forty-three  of this chapter including, but not limited to, the
persons authorized to execute an anatomical  gift  pursuant  to  section
forty-three hundred one of this chapter.
11. This section does not diminish the enforceability of a contract or
agreement  in  which a person controlling the disposition of the remains
of a decedent agrees to pay for goods or services in connection with the
disposition of such remains.