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They're fighting over the body (Part 1): Who decides?

Posted by John Henry | Sep 01, 2014 | 0 Comments

With a time sensitive decision, like the disposition of remains, it should be handled with care and efficiency.  However, who is able to make those decisions as a matter of Texas law?  Under Section 711.002(a) of the Texas Health and Safety Code, a list of priority is given:

  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; or
  6. any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.

What if a person of the highest priority fails, is unable, or is unwilling to act?  Under that same section, Texas law says that where a person 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 their right terminates and passes to a person of the same priority level or down to the next level of priority.

Subsequent entries in this series, "They're Fighting Over the Body," will focus on potential options in addressing designating a person to make decisions concerning disposition of remains.

About the Author

John Henry

Texas Attorney John B. Henry, III, practices throughout Texas, including Harris County, Jefferson County, Galveston County, Fort Bend County and the surrounding counties. Mr. Henry is a native of Texas, and he brings his perspective and experience to represent his client with the knowledge and ca...


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