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Bury Me in Satin, Pretty Please

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The Nyemaster Tax Law Blog is dedicated to current tax law and employee benefit/ERISA issues impacting individuals and businesses, at both the Iowa and federal levels. We hope you find this resource informative and appreciate your feedback.

This past Friday, the Iowa Supreme Court ruled that Iowa law does not allow a person to control the final disposition of that person's bodily remains.  In a split decision, the court held that Iowa's Final Disposition Act, Iowa Code Chapter 144C (the "Act"), provides a comprehensive and exclusive scheme for determining a person's final resting place, and the person's wishes are not a part of that scheme.  The Act was enacted in 2008, and allows a person to designate a competent adult to have the "sole responsibility and discretion for making decisions concerning the final disposition of the declarant's remains."  But the Act does not allow a person to directly control the disposition of the person's remains, nor does the Act require a designee to follow the wishes of the decedent, even if those wishes are crystal clear.

In the case, In re Whalen, the decedent's wishes to be buried in a specific cemetery in Montana were clearly specified in her will, and also in a letter the decedent wrote to her children and her estranged husband just two months before her death.  That letter was also provided to the director of the funeral home that provided services for the decedent.  The court admitted that the decedent's wishes were "well established," but determined that Iowa law makes those wishes irrelevant in the implementation of the Act.  In the absence of a declaration that meets the requirements of the Act, the surviving spouse has the sole power to control the disposition of a decedent's remains.

Chief Justice Cady dissented, joined by Justice Zager. He argued that the Act was only intended to be operative when the decedent's wishes were not clearly expressed, and that the legislature "did not intend to replace the timeless and fundamental ability" of Iowans "to direct for themselves their funeral arrangements and final disposition of their remains."



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