Texas Health and Safety Code - HEALTH & SAFETY § 711.002. Disposition of Remains;  Duty to Inter

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(a) Except as provided by Subsection (l), unless a decedent has left directions in writing for the disposition of the decedent's remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent's remains, shall inter the remains, and in accordance with Subsection (a-1) are liable for the reasonable cost of interment:

(1) the person designated in a written instrument signed by the decedent;

(2) the decedent's surviving spouse;

(3) any one of the decedent's surviving adult children;

(4) either one of the decedent's surviving parents;

(5) any one of the decedent's surviving adult siblings;

(6) any one or more of the duly qualified executors or administrators of the decedent's estate;  or

(7) any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.

(a-1) If the person with the right to control the disposition of the decedent's remains fails to make final arrangements or appoint another person to make final arrangements for the disposition before the earlier of the 6th day after the date the person received notice of the decedent's death or the 10th day after the date the decedent died, the person is presumed to be unable or unwilling to control the disposition, and:

(1) the person's right to control the disposition is terminated;  and

(2) the right to control the disposition is passed to the following persons in the following priority:

(A) any other person in the same priority class under Subsection (a) as the person whose right was terminated;  or

(B) a person in a different priority class, in the priority listed in Subsection (a).

(a-2) If a United States Department of Defense Record of Emergency Data, DD Form 93, or a successor form, was in effect at the time of death for a decedent who died in a manner described by 10 U.S.C. Sections 1481(a)(1) through (8), the DD Form 93 controls over any other written instrument described by Subsection (a)(1) or (g) with respect to designating a person to control the disposition of the decedent's remains.  Notwithstanding Subsections (b) and (c), the form is legally sufficient if it is properly completed, signed by the decedent, and witnessed in the manner required by the form.

(a-3) A person exercising the right to control the disposition of remains under Subsection (a), other than a duly qualified executor or administrator of the decedent's estate, is liable for the reasonable cost of interment and may seek reimbursement for that cost from the decedent's estate.  When an executor or administrator exercises the right to control the disposition of remains under Subsection (a)(6), the decedent's estate is liable for the reasonable cost of interment, and the executor or administrator is not individually liable for that cost.

(b) The written instrument referred to in Subsection (a)(1) may be in substantially the following form:

APPOINTMENT FOR 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)    

in accordance with Section 711.002,of the Health and Safety Code, and, with respect to that subject only, I hereby appoint such person as my agent (attorney-in-fact).

    All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding.

SPECIAL DIRECTIONS:

    Set forth below are any special directions limiting the power granted to my agent:

___________________________________________________________________________________________________

___________________________________________________________________________________________________

___________________________________________________________________________________________________

___________________________________________________________________________________________________

___________________________________________________________________________________________________

AGENT:

Name:  __________________________________________________________________________________________

Address:  _______________________________________________________________________________________

Telephone Number:  ______________________________________________________________________________

SUCCESSORS:

    If my agent or a successor agent dies, becomes legally disabled, resigns, or refuses to act, or if my marriage toI divorce my agent or successor agent is dissolved by divorce, annulled, or declared void before my death and this instrument does not state that the divorced agent or successor agent continues to serve after my marriage todivorce from that agent or successor agent is dissolved by divorce, annulled, or declared void, I hereby appoint the following persons (each to act alone and successively, in the order named) to serve as my agent (attorney-in-fact) 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 APPOINTMENTS REVOKED:

    I hereby revoke any prior appointment of any person to control the disposition of my remains.

RELIANCE:

    I hereby agree that any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document may act under it.  Any modification or revocation of this document is not effective as to any such party until that party receives actual notice of the modification or revocation.  No such party shall be liable because of reliance on a copy of this document.

ASSUMPTION:

    THE AGENT, AND EACH SUCCESSOR AGENT, BY ACCEPTING THIS APPOINTMENT, ASSUMES THE OBLIGATIONS PROVIDED IN, AND IS BOUND BY THE PROVISIONS OF, SECTION 711.002,OF THE HEALTH AND SAFETY CODE.

SIGNATURES:

    This written instrument and my appointments of an agent and any successor agent in this instrument are valid without the signature of my agent and any successor agents below.  Each agent, or a successor agent, acting pursuant to this appointment must indicate acceptance of the appointment by signing below before acting as my agent.

    Signed this ________ day of _________________, 20___.

_________________________________________________

 (your signature)

State of ________________________________________

County of _______________________________________

    This document was acknowledged before me on ______ (date) by _____________________________ (name of principal).

_________________________________________________

(signature of notarial officer)

(Seal, if any, of notary)

_________________________________________________

(printed name)

My commission expires:

_________________________________________________

ACCEPTANCE AND ASSUMPTION BY AGENT:

    I have no knowledge of or any reason to believe this Appointment for Disposition of Remains has been revoked.  I hereby accept the appointment made in this instrument with the understanding that I will be individually liable for the reasonable cost of the decedent's interment, for which I may seek reimbursement from the decedent's estate.

Acceptance of Appointment:  _____________________________________________________________________

(signature of agent)

Date of Signature:  _____________________________________________________________________________

Acceptance of Appointment:  _____________________________________________________________________

(signature of first successor)

Date of Signature:  _____________________________________________________________________________

Acceptance of Appointment:  _____________________________________________________________________

(signature of second successor)

Date of Signature:  _____________________________________________________________________________

(c) A written instrument is legally sufficient under Subsection (a)(1) if the instrument designates a person to control the disposition of the decedent's remains, the instrument is signed by the decedent, the signature of the decedent is acknowledged, and the agent or successor agent signs the instrument before acting as the decedent's agent.  Unless the instrument provides otherwise, the designation of the decedent's spouse as an agent or successor agent in the instrument is revoked when the marriage of the decedent and the spouse appointed as an agent or successor agent is dissolved by divorce, annulled, or declared void before the decedent's death.  Such written instrument may be modified or revoked only by a subsequent written instrument that complies with this subsection.

(d) A person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person in a priority listed before the person.

(e) If there is no person with the duty to inter under Subsection (a) and:

(1) an inquest is held, the person conducting the inquest shall inter the remains;  and

(2) an inquest is not held, the county in which the death occurred shall inter the remains.

(f) A person who represents that the person knows the identity of a decedent and, in order to procure the disposition, including cremation, of the decedent's remains, signs an order or statement, other than a death certificate, warrants the identity of the decedent and is liable for all damages that result, directly or indirectly, from that warrant.

(g) A person may provide written directions for the disposition, including cremation, of the person's remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person.  A party to the prepaid funeral contract or a written contract providing for all or some of a decedent's funeral arrangements who fails to honor the contract is liable for the additional expenses incurred in the disposition of the decedent's remains as a result of the breach of contract.  The directions may govern the inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and in which plot the decedent is subsequently interred.  The directions may be modified or revoked only by a subsequent writing signed and acknowledged by such person.  The person otherwise entitled to control the disposition of a decedent's remains under this section shall faithfully carry out the directions of the decedent to the extent that the decedent's estate or the person controlling the disposition are financially able to do so.

(h) If the directions are in a will, they shall be carried out immediately without the necessity of probate.  If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith.

(i) A cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent's remains.

(j) Repealed by Acts 2011, 82nd Leg., ch. 707 (H.B. 549), § 3.

(k) Any dispute among any of the persons listed in Subsection (a) concerning their right to control the disposition, including cremation, of a decedent's remains shall be resolved by a court with jurisdiction over probate proceedings for the decedent, regardless of whether a probate proceeding has been initiated.  A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent's remains, or to inter or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.

(l) A person listed in Subsection (a) may not control the disposition of the decedent's remains if, in connection with the decedent's death, an indictment has been filed charging the person with a crime under Chapter 19, Penal Code, that involves family violence against the decedent.  A person regulated under Chapter 651, Occupations Code, who knowingly allows the person charged with a crime to control the disposition of the decedent's remains in violation of this subsection commits a prohibited practice under Section 651.460, Occupations Code, and the Texas Funeral Service Commission may take disciplinary action or assess an administrative penalty against the regulated person under that chapter.

Cite this article: FindLaw.com - Texas Health and Safety Code - HEALTH & SAFETY § 711.002. Disposition of Remains;  Duty to Inter - last updated April 14, 2021 | https://codes.findlaw.com/tx/health-and-safety-code/health-safety-sect-711-002/


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