Dear Mr. Premack: My stepfather died and was buried on authority of his son in a regular cemetery. My mother (his second wife) knows that he wanted to be buried in a veteran’s cemetery, not where his son put him. His son refuses to let my mother move the remains to a veteran’s cemetery. Is there anything she can do? TJH
To address your question, we have to inspect laws in the Texas Probate Code, the Texas Health & Safety Code, and documents your father may have made under Texas law to control his funeral and burial.
Did you stepfather make any legal arrangements for himself? For instance, if he stated in his last will and testament that he wanted to be interred in a veteran’s cemetery, his wishes should be enforceable. Or if he signed a document called a “designation of agent to control disposition of remains” then his written instructions should be enforceable.
To enforce those written instructions, his wife should first contact the cemetery director where he is interred. According to the Health & Safety Code, he can be moved with joint permission from the cemetery organization, the owner of the plot in which he is interred, and the surviving spouse. If she owns the plot (or inherited ownership from her husband) then the law allows him to be moved despite his son’s objection. His son really has no legal right to be involved in the decision about where his father is buried (state law gives that first rights to the surviving spouse, and to the children only if there is no surviving spouse).
However, if his son does own the plot and refuses to give his consent, then she may have to file suit in the District Court. The written instructions left by your stepfather would then be used as evidence of his wishes, and the court will hold a hearing to determine whether moving his remains is proper.
If he did not make any of his own arrangements, and did not leave any written instructions, she can still try to move him by getting all the parties to agree (the parties being the cemetery organization, the owner of the plot, and the surviving spouse). Again, if his son owns the plot, he can block the move and she may need to file suit in the District Court.
Of course, you may have failed to mention that the son has already gone to court to get permission to handle his father’s funeral. Under the Texas Probate Code, an interested party may file an emergency application with the court to obtain authority to make and pay for funeral arrangements. If your mother (the decedent’s wife) was unavailable, too ill to participate, or refused to participate at the time of her husband’s death, then his son may have obtained a court order allowing him to make the funeral decisions and to access his father’s funds to pay for the funeral.
Even if there is such a court order, state law requires the court to follow any written instructions left by your stepfather. If he left such written instructions but his wife could not bring those instructions before the court near the time of his death, she should still be able to file suit in the District Court to get permission for moving his remains to a veteran’s cemetery.
Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, October 22, 2010
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