Who Is The Legal Next Of Kin?
Florida statutes provide detailed guidance regarding who is legally authorized to make decisions regarding the disposition of a deceased body. The rules equally apply to body donation, brain donation, cremation, and burial.
Florida statute 497.005 ("Definitions") sets forth who is authorized to make decisions. You can access this statute by clicking this link.
As outlined in the statute, there is an order of priority as to who makes decisions:
The decedent's wishes have the highest priority and should be memorialized in written instructions. It is best if the decedent writes down their wishes, and then signs and dates the instructions. The decedent's signature should be witnessed by two people who, if needed after death, can confirm that they witnessed the signature.
The Surviving Spouse
The decedent's surviving spouse is next in line to decide on their spouse's body. However, if the surviving spouse has been arrested for specific acts of domestic violence or contributed to the death of their husband or wife, they are ineligible to make decisions. Also, to be a surviving spouse, the decedent and the spouse must be legally married at the time of death.
A Son or Daughter Who is 18 Years of Age or Older
Next in the decision-making priority are the deceased's, adult children. If there is more than one child, all children must agree to the disposition, meaning all surviving children must consent to body or brain donation and/or cremation following donation.
If there is no spouse or surviving adult children, the next in line is the decedent's parents. If more than one parent survives the death of a child, both parents must consent to their child's disposition.
Siblings 18 Years of Age or Older
next in line are surviving brothers and sisters of the deceased. All siblings have equal rights, and all must consent to the body or brain donation followed by cremation.
Grandchildren Who Are 18 Years of Age or Older
Next in line are grandchildren. As with all classes of authorized individuals, all of the grandchildren must consent to the disposition of their grandparents.
Next Degrees of Kinship
This class of individuals includes aunts, uncles, nieces, nephews, cousins, etc. As with all other classes of authorized individuals, everyone in the applicable class must agree. There are detailed additional rules for decision-making if there are no classes of surviving individuals with superior rights.
If no family member exists or is available, next in line are (i) the guardian of the dead person at the time of death; (ii) the personal representative of the deceased; (iii) the attorney in fact of the dead person at the time of death; (iv) the health surrogate of the dead person at the time of death; (v) a public health officer; (vi) the medical examiner, county commission, or administrator acting under part II of chapter 406 (of the Florida statutes) or other public administrators; (vii) a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person.
For example, assume the decedent did not express their wishes prior to death and is married with two adult children. The decedent's spouse would be the authorized person and make all decisions regarding body and brain donation and the ultimate disposition of the cremated remains.
However, if the deceased individual's spouse does not have the legal capacity to make decisions (for example, if the surviving spouse has dementia), the authorized persons would be the deceased's children. Assuming there are two children, both must agree.
If you have questions about who can is the authorized person to make decisions, please feel free to contact Sunshine Donation Services at (954) 280-2817.