The Oklahoma Bar Journal February 2024

Jim Thorpe’s story isn’t the only one of its kind; there have been many more public figures whose families or loved ones have dis puted these types of issues in the public sphere. Baseball legend Ted Williams’ family fought over where and how he was to be buried, lead ing to hundreds of thousands of dollars in litigation costs; 11 socialite Anna Nicole Smith, 12 baseball star Kirby Puckett 13 and musician James Brown 14 all had public disputes over how their bodies were to be treated after their death as well. All these disagreements could have been avoided had the deceased left clear and binding directions. While this may sound like the type of story that only happens to professional athletes or celebrities, it occurs to regular people every day. In fact, our firm recently had a case where the children and the spouse of the deceased disagreed on what they thought the deceased would have desired (burial or cremation), which resulted in a delay of the cer emony, higher legal costs and fur ther division and hurt in an already grieving family. There are countless other stories of ordinary families who have been torn apart or further hurt by disputes over how to give proper burials to their loved ones. As estate planners, we have the ability to help families avoid these conflicts with a simple form added to our estate plan ning packages, providing better services to our clients by arming them with a clear plan to avoid increased costs and hurt. Fortunately, Oklahoma pro vides individuals with the ability to declare how their bodies should be treated after their death by stat ute and case law. THE SOLUTION

Fortunately, Oklahoma provides individuals with the ability to declare how their bodies should be treated after their death by statute and case law.

or cremated. 16 The common-law wife wanted to have the deceased cremated, and the children wanted a bodily burial. 17 The children alleged that the fact that the deceased had purchased a burial plot 50 years before and that he had given verbal statements during his life against cremation proved it would have been his intention to be buried at the end of his life. 18 However, the children never proved that there was a written contract evidencing the purchase of a burial plot. 19 Though the children purported that the dece dent had bought a burial plot, to fulfill the requirements of Section 1151(A), there must have been further proof, like a written con tract for the plot or a contract for prepaid funeral services. 20 Thus, the court held that testimonial evi dence of the purchase of a burial plot does not fulfill the require ments of 21 O.S. 2011 §1151(A) and §1158(1) for one’s ability to direct the disposal of one’s body and, therefore, was not proof enough to show his intention for burial. 21 The court, in its ruling, stated: Section 1151(A) does not provide any precise guidance for how such directive is accomplished; however, 21 O.S. 2011 § 1158(1)

Oklahoma Statutes In Oklahoma, the applicable

statute that provides how a person may direct how their remains are treated is found at 21 O.S. 2011 §1151. The statute gives a clear outline of a person’s right to choose how their remains are handled, how a per son should make these decisions, as well as a punishment for those who choose to go against the clearly stated wishes of the deceased. Specifically, in Oklahoma, a person has the right to choose how to have their remains disposed of and may do so by leaving a clear sworn affidavit outlining what they would like done with their remains and, most importantly, who they would like to carry out those wishes. 15 If these steps are fulfilled, they will comply with the requirements of the statute, and there will be an enforceable declaration for how the decedent is laid to rest. Oklahoma Case Law Beyond the statutes, case law in Oklahoma clarifies how to effec tively use this language. In re Estate of Downing . In re Estate of Downing involved a com mon-law wife and the children of the deceased fighting over whether the deceased should be buried

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

14 | FEBRUARY 2024

THE OKLAHOMA BAR JOURNAL