Who Has the Legal Right to Make Funeral Arrangements? State Laws Explained
When someone dies, especially unexpectedly, knowing who has the legal right to make funeral arrangements is crucial. State laws determine the next of kin (NOK), the person authorized to handle funeral planning, sign paperwork, and decide on burial or cremation. This becomes even more important if no written instructions were left behind.
Next of kin refers to the closest legal relative, but the definition varies by state law. It's essential to understand that state statutes, not family dynamics, dictate who qualifies as the NOK for funeral decisions. If someone dies without a will, known as intestacy, these state-specific laws govern both the division of the estate and funeral arrangements.
Before any property is divided, the next of kin typically takes charge of funeral arrangements. They must act quickly to finalize the burial or cremation process. However, a NOK can waive this right, allowing another person to step in. Understanding these laws ahead of time can help avoid delays, disputes, and legal costs.
But even before property is divided, the next of kin (abbreviated as NOK) is the person who is authorized to make funeral arrangements for their family member’s disposition (i.e., burial, cremation or other method) and must sign paperwork and do it relatively quickly. Another option takes place when the legal next of kin gives up their right in writing and allows another person to handle the task.
These laws generally rank the surviving spouse as the first person in the next of kin hierarchy. Note, this information is not intended as legal advice, and you should always consult a lawyer if your situation is complex, confusing, or contentious.
Funeral professionals often see confusion from family members around funeral decision-making legalities. For example, some people sign documents as agents and witnesses, which automatically invalidates them. Others think paperwork that gives them power of attorney for financial matters gives them the legal right to make funeral decisions (it does not) or similarly, that health care planning documents or a will suffices. If documents are improperly executed or don’t specifically mention funeral care, they are invalid. That’s often when the NOK hierarchy is used.
To avoid potential complications like long delays and court expenses, having your funeral professional help you navigate the process in advance can give you confidence that your wishes are represented and your plans for cremation or burial are set and funded.
You can be a financial hero to your family by taking steps now to plan ahead.
Who Has the Legal Right to Make Funeral Arrangements in Arizona?
In Arizona, your surviving spouse is first on the NOK list, but not if you were legally separated or there was a pending petition for divorce or legal separation. See Arizona’s complete NOK list here.
Who Has the Legal Right to Make Funeral Arrangements in California?
In California, if you write down your wishes, you rise to the top of the state’s hierarchy for making funeral decisions. The second on the list is your “agent” if you appoint one before death (but be sure to complete the legal paperwork properly). See the complete list here.
Who Has the Legal Right to Make Funeral Arrangements in Colorado?
In Colorado, like many other states we researched here, you can name someone in a “declaration instrument” before your death so they can take charge of your funeral arrangements. In Colorado, if you are legally separated, your surviving spouse is no longer the person to make choices for you. Colorado’s NOK hierarchy is listed here.
Who Has the Legal Right to Make Funeral Arrangements in Florida?
In Florida, state law determines who is legally authorized to make decisions for you. The Florida NOK hierarchy is listed here.
Who Has the Legal Right to Make Funeral Arrangements in Georgia?
A person who is named in a health care directive can make funeral arrangement decisions in Georgia if explicitly stated. The complete Georgia code which governs funeral arrangements can be found here.
Who Has the Legal Right to Make Funeral Arrangements in Idaho?
In Idaho, the hierarchy for decision-making is very similar to other states. One interesting aspect of Idaho law is that if the person is charged with murder or manslaughter of the deceased, they lose their rights, and the decision moves to the next place on the list. If they are acquitted, they can regain their right. See the complete Idaho NOK list here.
Who Has the Legal Right to Make Funeral Arrangements in Kentucky?
In Kentucky, a person named in documents before your death can make decisions about your final disposition. If no such documents exist and you are not in the military, a spouse is next in the hierarchy. You can see the complete Kentucky NOK list here.
Who Has the Legal Right to Make Funeral Arrangements in Maryland?
In Maryland, you can make your own document spelling out who you would like to make your funeral arrangements (must be signed by a witness). If no document has been properly created and the person is not in the military, the spouse or domestic partner ranks first on the NOK list for Maryland.
Who Has the Legal Right to Make Funeral Arrangements in Massachusetts?
Like many other states, in Massachusetts, you can plan your final disposition ahead of time with a funeral professional or name someone to handle your end-of-life planning in a valid document. If no contracts or legal documents exist, the Massachusetts list of NOK begins with the spouse and continues with adult children. See the complete list for Massachusetts NOK here.
Who Has the Legal Right to Make Funeral Decisions in Minnesota?
In Minnesota, if you were estranged from someone on the list, and there was only one person in that “class,” then the right passes to the next place on the hierarchy. You can find the complete NOK list for Minnesota here.
Who Has the Legal Right to Make Funeral Arrangements in Nevada?
According to Nevada law, someone you appointed (with proper, legally valid documents) is at the top of the list, followed by military arrangements (where appropriate) and then spouse. You can see the whole Nevada NOK list here.
Who Has the Legal Right to Make Funeral Arrangements in New Jersey?
In New Jersey, if there is no will or other state-approved document naming someone to make your funeral arrangements, your spouse is at the top of the state’s NOK hierarchy. The second tier will be the adult children, but like some other states, a majority will have to agree. See the whole list of New Jersey NOK here.
Who Has the Legal Right to Make Funeral Arrangements in New Mexico?
In New Mexico, the spouse is the first on the NOK list followed by a majority of adult children followed by surviving parents. See the entire NOK list for New Mexico here.
Who Has the Legal Right to Make Funeral Arrangements in New York?
In New York, a spouse or domestic partner tops the state’s list of next of kin. The next tier is any of the adult surviving children (not the majority) and then either surviving parent. You can view New York’s list here.
Who Has the Legal Right to Make Funeral Arrangements in North Carolina?
In North Carolina, the next of kin order begins with the spouse if there is no state-recognized legal document naming someone to handle funeral arrangements and no contract with a funeral home. Next on the list is the majority of adult children and then surviving parents. See the whole NOK list for North Carolina here.
Who Has the Legal Right to Make Funeral Arrangements in Oregon and Washington?
The rules in Oregon and Washington are very similar to each other and other states. But there is a difference in how the two states handle the wishes of adult children. In Washington, a majority of adult children must agree while in Oregon, one child may make decisions. Also, in Washington, if adult siblings are deciding, they must also have a majority. You can find the complete lists on their respective websites above.
Who Has the Legal Right to Make Funeral Arrangements in South Carolina?
In South Carolina, a spouse tops the list of next of kin unless the couple is separated. You can fill out a form to authorize your own cremation before you die or name an agent to handle arrangements, too. See the complete South Carolina list here.
Who Has the Legal Right to Make Funeral Arrangements in Tennessee?
If there are no funeral provider contracts or legal documents clarifying funeral arrangements, an attorney acting as the durable power of attorney for health care can make funeral decisions in Tennessee. The spouse follows, followed by the majority of adult children. You can see the complete Tennessee list of NOK here.
Who Has the Legal Right to Make Funeral Arrangements in Wisconsin?
In Wisconsin, the hierarchy is fairly similar to other states, but divorce proceedings can alter your spouse's role. See the complete NOK hierarchy in Badger State here.
Who Has the Legal Right to Make Funeral Arrangements in Virginia?
In Virginia, anyone can designate someone to handle their funeral arrangements (signed and notarized and accepted in writing by the person who was designated). The list is much the same as other states, beginning with spouses, followed by children, and then parents. See the complete list on this page.
Domestic Partnerships and Common Law Marriages
Most of the states we serve do not recognize common-law marriage. In fact, only a handful of states actually do. It is a common misperception that common law marriage happens automatically after a certain period of time. However, individuals can often assign a partner (or other competent adult) the legal control for disposition:
Even though most states do not recognize common law marriage, individuals usually can sign paperwork before death to assign a specific person the right to make funeral arrangements. They can also register to become state-registered domestic partners. After death, a legally recognized next of kin may also reassign this right by signing paperwork.
Choosing Another Representative
According to the Funeral Consumers Alliance, many states allow you to choose another person as your representative to guide your wishes when you die. This is particularly important if you are estranged from your next of kin. According to the legal website, Nolo.com, you can use a form like this one from Oregon or create your own. Military members should put their choices on this form, the site explains.
Also, the person who is your next of kin may want to relinquish their right to decide for you. This is done in writing.
Like much of our advice around end-of-life planning, it is best to decide your final plans for yourself and take the burden off of the others in your life. Just like a will or advance directive, you need to put your wishes in writing, be explicit, and store them in an easy-to-locate location with your other planning documents.