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Oklahoma Supreme Court Weighs In On Who Controls the Disposition Of a Decedent’s Remains

In In the Matter Of the Estate of Downing, an April 6, 2021 opinion, the Oklahoma Supreme Court considered a dispute over the control of the disposition of a decedent’s remains, and what constitutes sufficient evidence of a written document instructing the method and manner of handling the remains under Oklahoma law.

The Facts Of In the Matter Of the Estate of Downing

Vandell Downing (Decedent) and Maxine Bailey (Bailey) lived together for 36 years and had six children together.  At some point during their relationship, Decedent gave Bailey a ring as a symbol of their marital status. The parties resided together as a couple until Decedent’s death on April 4, 2018.

On April 13, 2018, Bailey, claiming she was Decedent’s common-law wife, filed a petition seeking appointment as administrator of the estate.  Bailey alleged that Decedent may have prepared a final will, but she was unable to find one.

On April 18, 2018, three of Decedent’s adult children, Sarita Downing, Vandella Downing, and Keith Williams (collectively “Children”) filed an application requesting an ex parte emergency temporary restraining order against Bailey and Pollard Funeral Home to prevent disposal of Decedent’s body.  The Children alleged that Bailey was not Decedent’s common-law spouse, and that it was Bailey’s intention to cremate Decedent contrary to his expressed wishes. The Children requested the court legally determine that: (1) Bailey was not Decedent’s common-law wife; (2) as surviving adult children, the Children were entitled to statutory control over Decedent’s body; and (3) Bailey be restrained from disposing of Decedent’s remains.

On April 20, 2018, the trial court issued an ex parte emergency order which prohibited Bailey and Pollard Funeral Home from carrying out cremation of Decedent’s remains.

On May 8, 2018, the parties appeared before the court for a hearing scheduled on both Bailey’s petition seeking appointment as administrator and review of the temporary restraining order. Prior to the hearing, the Children filed a motion to dismiss and objection to Bailey’s petition for appointment, arguing Bailey was not Decedent’s common-law wife. Notwithstanding, testimony was taken and Bailey was appointed as personal representative in accordance with 58 O.S. 2011 § 122(1).

A year later, a hearing was held on whether Bailey was Decedent’s common law wife, and on who should control Decedent’s remains.

On the issue of which party should control Decedent’s remains, the evidence was as follows:

Movants presented testimony that detailed the Decedent’s purchase of a burial plot and his alleged desire to be buried. Testimonial evidence consisted solely of general statements describing Decedent’s opposition to cremation, his purchase of a headstone and burial plot more than fifty (50) years before his death, and alleged statements by the Decedent showing his desire to be buried. Furthermore, Movants claimed that a deed and contract supporting Decedent’s purchase of a burial plot was available, but such documentation was never offered as evidence.  During the evidentiary hearing, counsel for Movants attempted to admit an exhibit relating to an inventory of Decedent’s safe-deposit box, conducted at Tinker Federal Credit Union on July 13, 2018. However, the trial court sustained a hearsay objection to admission of the exhibit.  Despite having copies of the actual physical documents contained in the safe-deposit box, Movants never sought to admit those records into evidence. Similarly, Movants argued Decedent had purchased burial insurance, but they never presented a copy of such a policy. In fact, no documentary evidence establishing Decedent’s desire to be buried was admitted into evidence. Finally, Movants placed great emphasis on the fact that Decedent was Jewish and that Bailey had converted to Judaism, as evidence of his intent to be buried rather than cremated.

The trial court found that “[Downing] and the Decedent were parties to a common law marriage, and that by the authority just mentioned, the Petitioner is the Decedent’s surviving widow.” Further, the ruling concluded that in accordance with 21 O.S. 2011 § 1158(1), “Decedent executed a written document which indicated his desire [to be buried], the contract whereby he purchased his burial plot.” Thus, notwithstanding the finding that Bailey was Decedent’s surviving widow, the district court found that the testimony regarding Decedent’s contract to purchase a burial plot “is in accord with 21 O.S. § 1151(A), in that the Decedent thereby made arrangements regarding the manner in which his body shall be disposed.” Granting a final restraining order, the Oklahoma trial court instructed Bailey to carry out the burial of Decedent’s remains in accordance with the relevant statutory provisions.

Bailey appealed the order to bury the Decedent, and the Oklahoma Supreme Court retained the matter to address the proper reading of 21 O.S. 2011 § 1158.

Who Has the Right To Direct the Disposition Of a Decedent’s Remains In Oklahoma?

An individual has the right to direct the manner of disposing his or her body. 21 O.S. 2011 § 1151(A).  Section 1151(A) does not provide any precise guidance for how such directive is accomplished; however, 21 O.S. 2011 § 1158(1) fills in this gap by setting forth specific requirements for control of a decedent’s remains under Oklahoma law.

The statute provides an order of the persons vested with control, provided that the person is 18 years of age and older and of sound mind.  The order is:

  1. The decedent, provided the decedent has entered into a pre-need funeral services contract or executed a written document that meets the requirements of the State of Oklahoma;
  2. A representative appointed by the decedent by means of an executed and witnessed written document meeting the requirements of the State of Oklahoma;
  3. The surviving spouse;
  4. The sole surviving adult child of the decedent whose whereabouts is reasonably ascertained or if there is more than one adult child of the decedent, the majority of the surviving adult children whose whereabouts are reasonably ascertained;
  5. The surviving parent or parents of the decedent, whose whereabouts are reasonably ascertained;
  6. The surviving adult brother or sister of the decedent whose whereabouts is reasonably ascertained, or if there is more than one adult sibling of the decedent, the majority of the adult surviving siblings, whose whereabouts are reasonably ascertained;
  7. The guardian of the person of the decedent at the time of the death of the decedent, if one had been appointed;
  8. The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than one person of the same degree, any person of that degree may exercise the right of disposition;
  9. If the decedent was an indigent person or other person the final disposition of whose body is the financial responsibility of the state or a political subdivision of the state, the public officer or employee responsible for arranging the final disposition of the remains of the decedent; and
  10. In the absence of any person under paragraphs 1 through 9 of this section, any other person willing to assume the responsibilities to act and arrange the final disposition of the remains of the decedent, including the personal representative of the estate of the decedent or the funeral director with custody of the body, after attesting in writing that a good-faith effort has been made to no avail to contact the individuals under paragraphs 1 through 9 of this section.


Is a Pre-Need Funeral Services Contract Or a Burial Plot Deed Sufficient To Direct Disposition Of Decedent’s Remains Under Oklahoma Law?

Yes, if the document is done in accordance with Oklahoma law, is admitted into evidence, and definitively establishes that a decedent has directed how their remains are to be handled.

Pre-paid funeral arrangements are subject to significant regulation across the country, and Oklahoma is no exception.  The Oklahoma Insurance Code specifically mandates that “[a]ll contracts for prepaid funeral benefits shall be in writing and no contract form shall be used without first being approved by the Insurance Commissioner.” 36 O.S. Supp. 2016 § 6121.  The problem in this case was that the record does not contain any kind of written agreement, executed by Decedent, which relates to prepaid funeral services. Therefore, the Children failed to establish the existence of such a contract as set out in the first clause of 21 O.S. 2011 § 1158(1).

Title 21 O.S. 2011 § 1158(1) also allows a decedent to control disposition of his or her remains by executing a written document in accordance with the laws of Oklahoma. Here, the evidence was insufficient to satisfy the statute’s requirements to direct the disposition of decedent’s remains under Oklahoma law.  The Oklahoma Supreme Court stated:

While Appellee maintains that testimonial evidence of a contract and/or deeds for burial plots, allegedly purchased by Decedent, are enough to satisfy § 1158(1), we conclude the statute requires more. To establish the right to injunctive relief in this case, § 1158(1) required introduction of an actual written document, executed by the Decedent in accordance with Oklahoma law. Further, such document must have either assigned responsibility for Decedent’s body to a specific individual, or provided express instructions on the method and manner of disposition of his remains. 21 O.S. 2011 §§ 1151(A) and (B), 1158(1).  The record does not include copies of any contract, deeds to burial plots, or other similar documentation directing the method/manner of disposing of his remains or assigning responsibility for those remains to an individual. Consequently, we have no way to ascertain whether Decedent even “executed” any kind of document, and such execution is clearly mandatory to invoke the second clause in § 1158(1). Moreover, ownership of a burial plot does not definitively establish that an individual has chosen interment over cremation.

A Decedent’s Preference Concerning the Handling Of Their Remains Must Be In Writing

Appellee also alleged that as a member of the Jewish faith, Decedent would have preferred burial to cremation. However, the Oklahoma Supreme Court noted that a decedent’s preference concerning the handling of their remains after death is not controlling unless such intent was reduced to writing and satisfied the express requirements of §§ 1151(B) or 1158(1)–that a deceased individual specifically set forth his or her intent in a writing which satisfies the statutory language.

In conclusion, the Court stated:

To establish entitlement to injunctive relief under 21 O.S. 2011 § 1158(1), Movants were obligated to admit into evidence either a pre-need funeral services contract or a written document executed by Decedent in accordance with the laws of Oklahoma. However, no documentary evidence was entered into evidence by Movants at the hearing, and the lower court relied exclusively on mere testimony that a fifty-year-old contract for the purchase of a burial plot existed without accounting for its absence. Consequently, the evidence was wholly insufficient to establish the prerequisites of either §§ 1151 or 1158(1). As such, the lower court’s decision to impose injunctive relief was an abuse of discretion. See Bd. of Regents of Univ. of Okla. v. Nat’l Collegiate Athletic Ass’n1977 OK 17, ¶ 20, 561 P.2d 499, 508.

Because there was no evidence in the record of any executed written document assigning responsibility for or directing the manner/method of disposing of Decedent’s remains, the Oklahoma trial court erred by directing burial over the surviving widow’s objection.  It seems that the result would have been different if the rules of evidence had been followed and the proper documents had been presented to the trial court.

This case had several separate concurrences and dissents.  One dissent urged that the trial court correctly found that the decedent most certainly directed what he wanted done with his remains.  The dissent reasoned that Section 1151 recognizes the right of any person to direct the manner in which his or her body should be disposed of after death, and does not reference section 1158 as a limitation on how the decedent may direct the manner in which is body shall be disposed of.  The dissent stated:.

Also, section 1151 only concerns the manner in which the body shall be disposed of. The manner used to dispose of the body of a deceased person can only mean “how” the task will be accomplished — in blunt terms, what is to be done with the body. And the Legislature provided no guidance on what is required to direct the manner of disposition of one’s own body; so we employ rules of interpretation. Title 25, section 29 tells us that we should liberally construe the statute to effect its object. The object of section 1151(A) is the decedent’s ability to direct the manner of disposition of his remains. To find section 1151(A) is subject to section 1158(1) here would both imply words into the statute and make section 1151(A) redundant and superfluous.

It doesn’t matter that the living in this case cannot agree whether to bury or cremate the body. The decision is not theirs to make because the Decedent “directed” what was to be done with his body. Decedent wanted to be buried, and the trial court so found.

The record clearly supports this ruling. Decedent many times orally directed that his body was to be buried, and the agreement for the cemetery plots and the deeds to those plots provide further evidence of Decedent’s directive.

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