Extension Office: What Are Your Rights Over Your Remains?

This is the second in a series of 2022 articles focusing on estate and legacy planning. Authors are Kaleena Miller, MSU Extension Madison-Jefferson County Agent, kaleena.miller1@montana.edu and Marsha Goetting, MSU Extension Family Economics Specialist, goetting@montana.edu.

During a holiday dinner, Margaret announced to her four children she wanted to be cremated and her ashes scatted in Yellowstone National Park because of all the time she and her husband spent there hiking. After Margaret’s death her daughter wanted to follow mom’s wishes, but the three sons disagreed. Because the local mortician followed the direction of the majority of children, Margaret was not cremated. She was buried in the local cemetery. Years later Margaret’s daughter still refuses to communicate with her three brothers because they did not honor their mother’s wishes about what she wanted done with her body after she died.

This is an example of a situation that can occur because of uncertainty under prior law about who had the right to make decisions about a deceased’s remains. With the enactment of the Montana Right of Disposition Act, Montanans can provide “disposition directions” and know that their choice has legal priority over any of their survivors’ wishes.

The act allows Montanans who are 18 years of age or older and of sound mind say what they wish to be done with their bodies or remains after death. Persons can select one of four methods that allows legal authority for their wishes to have priority over the preferences of survivors.

One method to exert control over remains is for a person to make a prepaid funeral contract with a licensed mortuary. There are two types of prepaid funeral contracts recognized under Montana law – a funeral trust and a funeral insurance policy. On either document the licensed mortuary is the beneficiary. In return, the mortuary promises to supply the prepaid funeral goods or services specified in the contact.

A second method for making a disposition direction under Montana law is a written instrument that a person can type, hand write, or print out on their computer. The person and two witnesses (all must be at least 18 years of age and of sound mind) must sign the written instrument. Letters of last instructions, a will, a trust document, a power of attorney, or a health care directive that has specific instructions about the disposition of the deceased’s remains, will qualify as a written instrument if signed by the deceased and two witnesses.

The third method of providing directions under Montana law is an affidavit. A person can authorize another person to control the disposition of remains in an affidavit signed before a notary public.

A fourth method of providing a disposition direction under Montana law is a video. A person can record a video and describe disposition preferences. The written confirmation of the video’s existence and accuracy must be signed by two witnesses who are at least 18 years of age and of sound mind.

The Montana statute lists a ranking order of individuals who can assume the “right of disposition” if a Montanan does not make prior arrangements. If a majority of the people with the right to make decisions cannot agree, they can file a petition for an order of disposition. The district judge then makes a decision about disposing of the deceased’s remains or determines who has priority to make the decision.

Information about your rights over your remains estates is available in a MontGuide. The fact sheet is available at the MSU Extension Madison-Jefferson County Office. Call 406-287-3282 or download at https://bit.ly/3rjyTUr.