Posted by: Traci Smith

Losing a loved one is hard. Sadly, those left behind often find themselves faced with decisions to make immediately following death that present additional challenges. The pain and grief that accompany death are normal.  Bewilderment and disorientation are also normal. So, the need for making funeral arrangements can feel overwhelming or even impossible. This is particularly true if there is a dispute over who has the duty and power to make final arrangements. Fortunately, Arizona law directs just who has the power and duty to make final arrangements for a deceased person.

A.R.S. § 36-831(A) provides a list of who is given priority for the responsibility of “burying the body of or providing other funeral and disposition arrangements for a dead person.” The list is quite lengthy, but the surviving spouse is given the highest priority, followed by an agent named under a valid power of attorney. However, Arizona law states that the agent designated under the power of attorney must be specifically authorized to make decisions regarding the disposition of the deceased person's remains.  Following this, Arizona law names, in order of succession, (1) the parents of a minor child, (2) adult children, (3) parent(s) of an adult child, (5) the parent of the deceased adult, (6) the adult sibling, (7) the adult grandchild, (8) the grandparent, and so on. If no one on this list can be reached or is willing to take on the responsibility, then the law specifies that an adult “who exhibited special care and concern for the dead person” can make the final arrangements.

Exceptions to Rule

Of course, every rule has an exception, and this situation is no different. These exceptions to the priority list under Section 36-831(A), include, but are not limited to, cases where none of the individuals listed above are willing or financially able to provide for a burial or other disposition of the body or if no one from the list can be located. In these cases, the county in which the death occurs has the obligation to make the arrangements.

What if there is More than One Person has Priority?

A.R.S. § 36-831(D) is designed to provide guidance where there is more than one person in a single category with priority. If there is more than one member of a category with priority that is entitled to handle final arrangements, those arrangements may be made by any member of the category unless that member knows of any objection by another member. If an objection is known, then the final arrangements are to be made by a majority of the members who are reasonably available.

So, what if there is more than one person with priority in the same category (i.e., parents) and there is an objection, but no majority? Unfortunately, that issue was not directly addressed by Arizona statute. Instead, it was answered by the courts in 2020.  At that time, the Court found that where there is a disagreement over disposition arrangements between the decision makers in the same category, but no majority, the individual who is going to honor and follow the decedent's wishes should be appointed to carry out those wishes. Hence the importance of making one's final wishes known, preferably in writing.

What is Required to be Done with the Decedent's Remains?

Separate from “who” has the duty and power to dispose of the remains is the issue of “what” should be done. What funeral arrangements should be made?  Should the deceased person be buried? Should the deceased person be cremated?  If so, what to do with the ashes?  

The law allows a competent adult to prepare and sign a written statement directing cremation or other legal disposition of their remains. This statement may be a Last Will or done in a separate document. However, if the directive is made in a separate statement, it must be signed, dated, and notarized or witnessed by at least one adult who affirms, in writing, that the notary/witness was present when the document was executed, and that the person appeared to be of sound mind and free from duress at the time of execution.

Deciding whether to bury or cremate your loved one and related decisions should be the least of your concerns. Unfortunately, as in any stressful situation, problems and conflicts may arise. Fortunately, Arizona law provides some guidance regarding the duty and power to bury or cremate.