The person with the legal right to decide is set by state law. Lawyers call it the right of disposition: the right to decide what happens to the body and to make the funeral, burial or cremation arrangements. It usually goes to someone the person chose in writing first, and if there's nobody like that, to the closest family, starting with a spouse.
You may never need to look this up. It matters when the closest relatives disagree, when a relationship is complicated, or when the funeral home asks who is signing. Rules vary by state, and a probate court or a lawyer in that state can say exactly what applies.
What is the right of disposition?
It's the legal authority to make the final arrangements: burial or cremation, and the decisions that follow. In Florida, for example, it's this person whose authorization a funeral home relies on before a cremation.
It's separate from the executor's role. An executor handles the estate, the property and debts. The right of disposition is about the body and the service. In Texas, an executor comes sixth in line. California's list doesn't name the executor at all.
Who comes first? The order in three states
Each state writes its own list. Here's how three of them line up.
| Order | California (Health & Safety Code § 7100) | Texas (Health & Safety Code § 711.002) | Florida (Stat. § 497.005) |
|---|---|---|---|
| 1 | Agent under a power of attorney for health care | Person named in a signed written instrument | The person's own written authorization |
| 2 | Surviving spouse | Surviving spouse | Person named on military form DD 93 |
| 3 | Majority of adult children | Any one of the adult children | Surviving spouse |
| 4 | Parents | Either parent | An adult son or daughter |
| 5 | Majority of adult siblings | Any one of the adult siblings | A parent |
| 6 | Other adult relatives, closest first | Executor or administrator of the estate | An adult brother or sister |
| 7 | Conservator, then public administrator | Next of kin under inheritance law | Adult grandchild, grandparent, then next of kin |
The pattern is similar: a chosen person first, then spouse, children, parents, siblings. The differences matter, though, especially when siblings or adult children don't agree. Our funeral law by state pages cover each state, for example California, Texas and Florida.
What if the children don't agree?
This is where states really differ.
In California, adult children decide by majority. A smaller group can act alone only if they've made reasonable efforts to tell all the other adult children what they plan to do and don't know of any opposition from the majority. The same rule applies to siblings.
Texas lets "any one" of the adult children act. Florida's law tells a funeral home it can rely on any one person in a class, if that person says they know of no objection to the cremation from others in the same class or from anyone ranked higher.
So in some states, one child can sign. In others, the funeral home will want to know the majority agrees. If your family is split, the funeral home can tell you which rule it works under in your state.
Can you name someone ahead of time?
Yes, and in all three of these states that person goes to the front of the line.
- California: the first person on the list is the agent named in a power of attorney for health care.
- Texas: you can sign a written instrument naming an agent. The statute includes a form. Your signature has to be acknowledged, and the agent has to sign it before acting.
- Florida: the person's own written authorization comes first. Service members can also name someone on DD Form 93, the Defense Department's Record of Emergency Data.
If you're thinking about this for yourself, the form and the signing rules are your state's, so check them before you sign.
Do the person's own wishes count?
Often they do, with a money condition attached.
In California, written funeral directions must be followed if they're clear and paid for. The law asks that payment be arranged ahead, through a trust, insurance or another binding means, so the survivors don't have to pay. Directions in a will are to be carried out right away. If only part of the cost was arranged, the rest of the wishes are followed only as far as the person's assets allow, unless the family chooses to pay the difference.
Texas says the person in charge must faithfully carry out directions left in a will, a prepaid funeral contract, or a signed and acknowledged written instrument, as far as the estate or that person can afford to.
So a written wish carries weight, but an unfunded one can run into the budget. Our guide to putting funeral wishes in a will covers the practical side.
Who pays for the funeral?
Making the decisions and paying the bill are linked, but not always the same thing.
In California, the reasonable cost falls jointly on all relatives in the same degree of kinship and on the estate. A health care agent pays only if they agree to, or if they make decisions that run up costs, and then only for the reasonable costs of those decisions. In Texas, the people controlling the disposition are liable for the reasonable cost of interment (the burial itself) and can seek to be repaid from the estate.
Estates often pay funeral costs early. In Florida, funeral costs up to $6,000 come right after the costs of running the estate. More on that in paying for a funeral from the estate.
Frequently asked questions
Does the executor decide on the funeral?
Not usually, unless they're also the closest relative or the named agent. In Texas the executor is sixth in line, after the spouse, children, parents and siblings. California's order doesn't include the executor.
Can one sibling make the decisions alone?
It depends on the state. In Texas, siblings come fifth, and the law lets any one adult sibling act. In California, siblings decide by majority, unless a smaller group has tried to reach the others and knows of no objection.
What if there's no family?
The list keeps going. In California, a conservator and then the county's public administrator come last. In Florida and Texas, the order runs on to more distant relatives.
Is a funeral wish in a will binding?
In California, directions in a will are to be carried out right away, as long as payment has been arranged. Texas also counts directions in a will, as far as the estate or the person in charge can afford them. Other states set their own rules.
Sources
- California Health and Safety Code § 7100
- California Health and Safety Code § 7100.1
- Texas Health and Safety Code § 711.002
- Florida Statutes § 497.005: Definitions
- Florida Statutes § 733.707: Order of payment of expenses and obligations