by Sarah Rutledge Fisher
Even the best made funeral plans are vulnerable. When it comes to unmarried couples, straight or LGBT, what happens to one’s remains after death is generally determined not by long-term partners, but by the next-of-kin. Though the wishes of the deceased are usually taken into account, the next-of-kin generally has the right to make final decisions.
Like many a horror story, this one begins with the end of a life. Two partners, Amanda and Sharon, long by each other’s side but never married, were separated by death. Amanda passed on from this life, and Sharon remained behind to tend to the difficult but important task of memorializing her late partner. The death had not been sudden, and they had time to select a funeral home and make the plans together—choosing flowers, readings, music, and speakers—each deeply significant to Amanda’s life and the life she and Sharon had built together. Amanda had paid in advance from her own accounts, hoping to spare Sharon additional grief after her passing. But when Sharon arrived at the funeral home after leaving the hospital for the last time, the funeral director regretfully told her that Amanda’s family would be handling arrangements and preferred that she not be involved. Days later Sharon, along with friends and family, stood and walked out of a service that not only failed to represent Amanda’s life but also used her death as an opportunity to preach hateful propaganda condemning the love they had shared.
This particular couple isn’t real—they are just a campfire story created to illustrate a point. But they represent reality for numerous LGBT couples all over the country.
Under American law, a body after death is what is considered quasi-property—no longer a person capable of moving forward under its own autonomy, but also not completely the property of anyone else. Even if the deceased had explicitly expressed her wishes, what happens to her remains after death is generally determined by the next-of-kin. Though the wishes of the deceased are usually taken into account, the next-of-kin generally has the right to make final decisions.
You may remember this issue from the scandal that followed the death of the celebrity model and actress, Anna Nicole Smith. When a person is married, the spouse is the default next-of-kin, but Anna Nicole and her long-time companion Howard had never been married. After her death, he, as the executor of her will, argued that she should be buried in the Bahamas, near the grave of her son. Anna Nicole’s next-of-kin, however, was her estranged mother, who argued that she wanted to bury Anna Nicole’s body at home in Texas. Anna Nicole was ultimately buried in the Bahamas, but only after her partner Howard fought an expensive, month-long legal battle.
Under the law, there are only two ways to create a next-of kin relationship: marriage and adoption. So, what can a happily unmarried person do to ensure their wishes are honored even after death? According to Susan Mackenzie, who
has been practicing family law and estate planning with a focus on the LGBT community since 1986, the first step is to put your desires in writing.
“If you’ve got a situation where you think the family is going to be problematic,” Mackenzie says, “then the best you can do is try to beef up the family protection documents to recognize that reality and make it harder for somebody to contradict your desires.” To do this, she suggests that you include your desires in every document related to your end of life and funeral planning. Give your executor explicit authority to fight to implement your desires, get injunctive relief if needed, and take any other legal measures as necessary.
This, in and of itself, is sometimes enough to prevent problematic family members from attempting to subvert your desires. Even so, she encourages people to consider the carrot as well as the stick.
“If your estate plan does leave anything to those family members,” she advises, “then you can specifically include language in the will where they are disinherited if they obstruct your desires to implement your funeral plan as set out in that document or any other document you may attach to it.”
At the end of the day, it all comes down to making plans. Death can come unexpectedly, and if your next-of-kin situation gives you cause for concern, it is never too early to prepare. Doing so may save your loved ones from unnecessary trauma in a time of grief and free them to celebrate the life and love you now share.