Custody and Control of Personal Effects and Bodily Remains

The very title of this post — and the document I will be discussing — seems odd. Yet, for gay and lesbian couples in particular, the issue remains one of the most important ones you need to understand.

I was fortunate to be asked to guest-lecture a family law class for paralegal students at a local community college last week. During the course of my lecture, I discussed various types of legal documents that lesbian and gay couples should consider executing, whether or not they are legally married. The students posed interesting questions — and several expressed their dismay at the very thought of having to execute certain documents at all. The one the class found most disconcerting was the Custody and Control of Personal Effects and Bodily Remains. I’ll explain.

If a couple is legally married in the State of Connecticut, and one person dies, the surviving spouse has the right to claim the body and personal effects. Basically, this means that the spouse has the right to direct a specific funeral to home transport the decedent’s body from the place of death (such as a hospital or nursing home) to the funeral home. The surviving spouse has the right to make funeral arrangements, to write and publish an obituary, and to arrange for cremation or burial. If a spouse dies in a hospital or nursing home, the survivor has the right to claim the deceased’s personal of effects (such as the wedding ring).

If you are a gay or lesbian couple living in the State of Connecticut — and you are legally married — these rights are extended to you. That is, IF you or your spouse dies in Connecticut (or one of the handful of other states that recognizes same-sex marriage). But what if you and your spouse are traveling in a state that does not recognize your marriage and your spouse suffers a fatal heart attack? If he or she dies in the hospital, you will not have the right to claim his or her body or personal effects because that state’s laws consider you a legal stranger. Your Connecticut marriage isn’t recognized in that state.

There have been numerous cases in which a beloved partner has died in a hospital and the surviving partner was not allowed to claim the body or take part in any of the funeral arrangements. The deceased’s next of kin (such as parents or siblings) would have that right. I know of a case in which the surviving partner wasn’t just prohibited from attending the funeral services for her partner of 22 years, but was also denied information about the location of her partner’s burial site!

Family members have interred the remains of the deceased in the ground when the deceased’s wish was to have her/his remains cremated and placed in a double urn that would later also contain the remains of her/his spouse and life partner. Yet other families have refused to publish the name of the deceased’s life partner in the text of the obituary, in spite of the couple having spent decades together in a committed loving relationship.

By executing a document authorizing that custody and control of your bodily remains and personal effects is granted to your spouse and life partner, you can prevent these devastating events from occurring.

If you are an unmarried gay or lesbian individual over the age of 18 and living in the State of Connecticut, you also have the right to execute this document in order to designate another individual (such as your partner to whom you are not married) to have custody and control of your personal effects and bodily remains.

A licensed attorney is able to draft such a document for you.



Disclaimer:  The information, comments and links posted on the blog do not constitute legal advice.   I will not respond to any specific legal questions in the comments section of this blog. Read my entire disclaimer.

copyright 2010 Irene C. Olszewski

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