Tex.
Health & Safety Code Section 711.002
Disposition of Remains; Duty to Inter
(a)
Except as provided by Subsection (l), unless a decedent has left directions in writing for the disposition of the decedent’s remains as provided in Subsection (g), the following persons, in the priority listed, have the right to control the disposition, including cremation, of the decedent’s remains, shall inter the remains, and in accordance with Subsection (a-3) are liable for the reasonable cost of interment:(1)
the person designated in a written instrument signed by the decedent;(2)
the decedent’s surviving spouse;(3)
any one of the decedent’s surviving adult children;(4)
either one of the decedent’s surviving parents;(5)
any one of the decedent’s surviving adult siblings;(6)
any one or more of the duly qualified executors or administrators of the decedent’s estate; or(7)
any adult person in the next degree of kinship in the order named by law to inherit the estate of the decedent.(a-1)
If the person with the right to control the disposition of the decedent’s remains fails to make final arrangements or appoint another person to make final arrangements for the disposition before the earlier of the 6th day after the date the person received notice of the decedent’s death or the 10th day after the date the decedent died, the person is presumed to be unable or unwilling to control the disposition, and:(1)
the person’s right to control the disposition is terminated; and(2)
the right to control the disposition is passed to the following persons in the following priority:(A)
any other person in the same priority class under Subsection (a) as the person whose right was terminated; or(B)
a person in a different priority class, in the priority listed in Subsection (a).(a-2)
If a United States Department of Defense Record of Emergency Data, DD Form 93, or a successor form, was in effect at the time of death for a decedent who died in a manner described by 10 U.S.C. Sections 1481(a)(1) through (8), the DD Form 93 controls over any other written instrument described by Subsection (a)(1) or (g) with respect to designating a person to control the disposition of the decedent’s remains. Notwithstanding Subsections (b) and (c), the form is legally sufficient if it is properly completed, signed by the decedent, and witnessed in the manner required by the form.(a-3)
A person exercising the right to control the disposition of remains under Subsection (a), other than a duly qualified executor or administrator of the decedent’s estate, is liable for the reasonable cost of interment and may seek reimbursement for that cost from the decedent’s estate. When an executor or administrator exercises the right to control the disposition of remains under Subsection (a)(6), the decedent’s estate is liable for the reasonable cost of interment, and the executor or administrator is not individually liable for that cost.(b)
The written instrument referred to in Subsection (a)(1) may be in substantially the following form:(Seal, if any, of notary)
(c)
A written instrument is legally sufficient under Subsection (a)(1) if the instrument designates a person to control the disposition of the decedent’s remains, the instrument is signed by the decedent, the signature of the decedent is acknowledged, and the agent or successor agent signs the instrument before acting as the decedent’s agent. Unless the instrument provides otherwise, the designation of the decedent’s spouse as an agent or successor agent in the instrument is revoked when the marriage of the decedent and the spouse appointed as an agent or successor agent is dissolved by divorce, annulled, or declared void before the decedent’s death. Such written instrument may be modified or revoked only by a subsequent written instrument that complies with this subsection.(d)
A person listed in Subsection (a) has the right, duty, and liability provided by that subsection only if there is no person in a priority listed before the person.(e)
If there is no person with the duty to inter under Subsection (a) and:(1)
an inquest is held, the person conducting the inquest shall inter the remains; and(2)
an inquest is not held, the county in which the death occurred shall inter the remains.(f)
A person who represents that the person knows the identity of a decedent and, in order to procure the disposition, including cremation, of the decedent’s remains, signs an order or statement, other than a death certificate, warrants the identity of the decedent and is liable for all damages that result, directly or indirectly, from that warrant.(g)
A person may provide written directions for the disposition, including cremation, of the person’s remains in a will, a prepaid funeral contract, or a written instrument signed and acknowledged by such person. A party to the prepaid funeral contract or a written contract providing for all or some of a decedent’s funeral arrangements who fails to honor the contract is liable for the additional expenses incurred in the disposition of the decedent’s remains as a result of the breach of contract. The directions may govern the inscription to be placed on a grave marker attached to any plot in which the decedent had the right of sepulture at the time of death and in which plot the decedent is subsequently interred. The directions may be modified or revoked only by a subsequent writing signed and acknowledged by such person. The person otherwise entitled to control the disposition of a decedent’s remains under this section shall faithfully carry out the directions of the decedent to the extent that the decedent’s estate or the person controlling the disposition are financially able to do so.(h)
If the directions are in a will, they shall be carried out immediately without the necessity of probate. If the will is not probated or is declared invalid for testamentary purposes, the directions are valid to the extent to which they have been acted on in good faith.(i)
A cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment shall not be liable for carrying out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent’s remains.(j)
Repealed by Acts 2011, 82nd Leg., R.S., Ch. 707, Sec. 3, eff. June 17, 2011.(k)
Any dispute among any of the persons listed in Subsection (a) concerning their right to control the disposition, including cremation, of a decedent’s remains shall be resolved by a court with jurisdiction over probate proceedings for the decedent, regardless of whether a probate proceeding has been initiated. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent’s remains, or to inter or otherwise dispose of the decedent’s remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled.(l)
A person listed in Subsection (a) may not control the disposition of the decedent’s remains if:(1)
in connection with the decedent’s death, the person has been arrested or an arrest warrant has been issued for the person for a crime under Chapter 19 (Criminal Homicide), Penal Code, that involves family violence against the decedent; or(2)
the decedent had filed an application for a protective order against or with respect to the person under Subchapter A, Chapter 7B (Protective Orders), Code of Criminal Procedure, Article 17.292 (Magistrate’s Order for Emergency Protection), Code of Criminal Procedure, Section 6.504 (Protective Orders), Family Code, or Subtitle B, Title 4, Family Code, or an order has been issued against or with respect to the person under one of those provisions.(l-1)
A person regulated under Chapter 651 (Crematory Services, Funeral Directing, and Embalming), Occupations Code, who knowingly allows a person described by Subsection (l) to control the disposition of the decedent’s remains in violation of that subsection commits a prohibited practice under Section 651.460 (Prohibited Practices Related to Failure to Comply with Other Legal Requirements), Occupations Code, and the Texas Funeral Service Commission may take disciplinary action or assess an administrative penalty against the regulated person under that chapter.(l-2)
A court with jurisdiction over probate proceedings shall expedite the proceedings to resolve any dispute over the right to control the disposition of a decedent’s remains among the persons listed in Subsection (a) if the dispute involves the control of the disposition of the remains by a prohibited person described by Subsection (l).
Source:
Section 711.002 — Disposition of Remains; Duty to Inter, https://statutes.capitol.texas.gov/Docs/HS/htm/HS.711.htm#711.002 (accessed Jun. 5, 2024).
