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New York State Health Law Section 4201

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New York State Health Law Section 4201 July 2006 Estate Planning Alert New York State Health Law Section 4201 Background of statute Effective August 2, 2006, pursuant to Public Health Law §4201, individuals will be able to include in their estate planning, an assignment of agent in the disposition of remains. While this may seem unnecessary to the majority of individuals, with the increase of multiple marriages, same-sex relationships and individuals who are choosing co-habitation over legal marriage, the disposition of a loved one’s remains is increasingly being litigated. And even though burial instructions can be included in a client’s Last Will & Testament, an individual is usually buried long before a Will is probated or even looked at. Relevant legal disputes At Wilson Elser, over the past two years, we have encountered two such cases in which if the decedent had planned in advance of his or her death for the disposition of his or her remains, certain familial fighting and Surrogate’s Court litigation could have been avoided. In one case, the decedent was in a same-sex relationship. He left a memo to his life partner describing how he would like to be memorialized (no religious ceremony or customs, no cremation, and that only family, no friends or business colleagues, were to participate in any memorial service). The life partner, for reasons known only to him, chose to disregard this request and planned a very elaborate memorial service. The daughter of the decedent was upset and disputed that this memorial was something her father would have wanted. While in the end the memorial took place, it was only after tense negotiations and having a specific limit placed on the cost associated with the memorial service (approximately $30,000 for food and the room). Further disputes centered on the attire in which the decedent was to be buried as the daughter wanted her father, a non-religious man, to be buried in a suit and tie while the life partner wanted him buried in a traditional Jewish shroud. In the end, the daughter’s demands superseded the life partner’s, and the decedent was buried in a suit and tie. However, these disputes did not end at the burial but continued throughout the year when the life partner attempted to become involved in the writing of the decedent’s headstone. The daughter was adamant that he should not be permitted any role in this or any other arrangements for her father’s remains. The life partner was ultimately excluded from these decisions. While the court was never involved in this case, the attorneys for the respective clients spent an incredible amount of time corresponding back and forth on these issues. Recently, the life partner brought a lawsuit pursuant to Public Health Law §4201 against the cemetery and the president of the cemetery to have the decedent’s tombstone removed and revised according to the life partner’s desires and to have the decedent’s remains disinterred and removed to another plot in the cemetery. There are numerous flaws in this suit as the statute, Public Health Law §4201, does not become effective until August 2, 2006, and it is not retroactive. In addition, the cemetery and president of the cemetery are inappropriate parties (neither the decedent’s daughter nor the Estate were named parties). Notwithstanding this, such a lawsuit will needlessly cause enormous emotional pain on both sides until it is dismissed. In another case, the decedent was a single woman in her twenties, who was not married and did not have any children at the time of her death. Therefore, her parents would have control as to the disposition of her remains. However, her parents were divorced and while they loved their daughter both in life and in death, they very much hated one another. As there was no burial plot at the young woman’s death, the mother chose to have her daughter buried in an old family plot that had one remaining plot available. However, due to the fact that the plot already contained many family members (the plot was occupied by great-uncles and great-aunts), there was no room to place an individual headstone for the decedent. During the settlement of the estate and the disposition of the daughter’s various assets, the father demanded that any condition of settlement must include the removal of his daughter’s remains from the cemetery chosen by his former wife to a plot in which his daughter could have her own headstone and recognition. This case continued for many years primarily because of this one issue. Key features of the statute These cases and others like them will now be avoidable when individuals, during their lifetime, make the decision to appoint an agent to dispose of their remains pursuant to set terms. The Appointment of Agent to Control Disposition of Remains, similar to a Health Care Proxy or a Living Will, designates the agent whom the client wishes to carry out these matters. In addition, the statute provides that an individual may give special directions such that s/he be buried at a particular site and with a particular funeral home, or cremated and the remains disposed of in a particular manner. Significantly, an individual will be able to revoke prior appointments and advise the designated agent of his/her appointment. This is particularly beneficial in divorces or second marriages. The designated agent is then required to sign a document both accepting and assuming the responsibilities of agent for this individual. An original executed Appointment of Agent to Control Disposition of Remains may be kept with the client, the designated agent and the law firm. Upon the client’s death, the designated agent will be able to present said legally-recognized document and ensure that the client’s remains are disposed of according to his or her special directions. In the event that the decedent did not name an agent, Public Health Law §4201 also designates in descending priority those individuals which shall have the right to control the disposition of the decedent’s remains: surviving spouse or domestic partner (more of this below); any of the decedent’s surviving children over the age of 18; either of the decedent’s parents; any of the decedent’s surviving siblings over the age of 18; a guardian appointed pursuant to Article 17 or Article 17-a of the Surrogate’s Court Procedure Act (SCPA) or Article 81 of the Mental Hygiene Law; and finally, the duly appointed fiduciary of the decedent’s estate. A domestic partner is specifically defined in the statute to avoid any confusion or unnecessary litigation. Thus, in order to qualify under this designation, one must have a formal/legal agreement, or be recognized as a beneficiary or covered person under one’s employment benefits or health insurance, or as evidenced by the totality of the circumstances, e.g. ownership of property, shared living expenses and/or income, etc. The statute permits, absent a written instrument pursuant to Public Health Law §4201, the continued recognition of agent designations or disposition of remains in an individual’s Will pursuant to the laws of the State of New York made on or after the effective date of Public Health Law §4201. However, it does require that the designated agent be unaware of any subsequently-executed written document evidencing a specific intent to revoke the designation of agent and directions regarding disposition as set forth in the Will, and execute a written statement evidencing the same. In addition, the statute recognizes, absent a written instrument pursuant to Public Health Law §4201, the continued recognition of agent designations or disposition of remains in an individual’s Will pursuant to the laws outside of the State of New York or executed prior to the effective date of Public Health Law §4201. While this will be considered reflective of the decedent’s intent, such a designation would be superseded by a written instrument subsequently executed pursuant to Public Health Law §4201 or any subsequent act of the decedent which demonstrates a specific intent to alter the designation and/or direction set forth in the decedent’s Will. Conclusions The intent of estate planning has always been to place in the hands of each individual the right to remain in control of his/her financial and personal affairs. For a long time this control has been relegated to Wills, Revocable or Irrevocable Trusts, Living Wills, Health Care Proxies and Powers of Attorney. With the inclusion of this recently-enacted statute, individuals may rest assured that in death, as in life, their desires and intent will be further protected. The Trusts & Estates Department at Wilson Elser intends to include the Appointment of Agent to Control Disposition of Remains as part of all our clients’ estate planning from this point forward. If you have any questions regarding this recently- enacted statute, please contact Larry H. Ingber via e-mail at [email protected] or by phone at the firm’s New York office at 212.490.3000. This alert is for general guidance only and does not contain definitive legal advice. Contact us at [email protected]. © 2006 Wilson Elser Moskowitz Edelman & Dicker LLP. All Rights Reserved. .
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