COMMENTARY: Who gets to plan your funeral? It depends

By Marie E. Matyjaszek

When you die, there is a pecking order as far as who gets to decide the details surrounding your funeral.  You may be thinking, “what do I care?  I’ll be dead!” but plenty of Michigan funeral directors have to contend with angry family members and friends when disputes arise.

A new law went into effect on March 31, 2017, Public Act 20 of 2017 (previously Senate Bill 39), which clarifies what it means to be a “surviving spouse.”  In Michigan, the first person up to bat to decide what to do with you after you’ve passed on to the great beyond is a designated individual. What better control to have from the grave than to hand-pick the person, right?  The second in command is a “surviving spouse.”  From there you have children, grandkids, parents, grandparents, and siblings.

As a family law attorney, I am well aware of the unconventional (some might say warped) relationships that people have with each other.  I’ve seen people who are legally married but haven’t seen or heard from their spouse in decades, even if they have children. Do they file for divorce at any point?  Nope.  Sometimes it’s because they don’t have the money, aren’t sure how to go about it, or, just simply don’t care enough to do anything. They give real meaning to the saying out of sight, out of mind.  The spouses may very well be in committed, long-term relationships with others and have additional children.

Another scenario is when the couple decides to file a separate maintenance action, which I often hear referred to as a “legal separation.”  Basically, everything is divided up (property, retirement benefits, money), and a determination is made as to custody, parenting time and support if children are involved, but the parties agree to stay legally married.  Both individuals have to agree to the separate maintenance judgment being entered, as opposed to a divorce, where it’s going to happen whether you both like it or not.

Due to the fluid nature of our society, marriages don’t always look like the “traditional” thing anymore.  The practice before the new law was that when someone died, if there was a dispute as to the surviving spouse, the funeral director had the unfortunate duty of making that decision.  Public Act 20 of 2017 provides explicit definitions for the term surviving spouse, and if there is a disagreement, the probate court gets the first chance at bat, not the funeral director.

The basic take-away from the new law is that if you were legally married to the decedent, you are the surviving spouse.  If you are divorced or your marriage was annulled, you are not the surviving spouse. If you have a “decree of separation,” it does not terminate your married couple status, and is not considered a divorce.

As with most laws, there are a host of exceptions outlined as well.  One is if you are a bigamist and in a relationship with another person at the time of the decedent’s death, you are not a surviving spouse.  If you “...did any of the following for 1 year or more before the death of the deceased person:  [w]as willfully absent from the decedent spouse; [d]eserted the decedent spouse; [w]illfully neglected or refused to provide support for the decent spouse if required to do so by law,” you are not the surviving spouse. {See Section (e)(i)-(iii) of Public Act 20 of 2017}. Other exemptions are also highlighted in the law.

So, in addition to engaging in important relationship talks like “do you want kids,” you should consider whether you really want this person determining if you are cremated and sprinkled across the water, or stuck in the ground for all eternity.  Who knew being dead involved so many decisions?
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Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. Her blog site is: http://legalbling.blogspot.com. She can be reached by e-mailing her at matyjasz@hotmail.com.