The Oklahoma Bar Journal February 2024

the deceased’s estranged wife challenged this, the court held that by not explicitly stating who would serve in the role to dispose of his body in the will or other wise, he left behind inadequate instructions to fulfill the require ments of 21 O.S. 2011 §1151. 28 These two cases provide guidance that verbal desire or instruction alone will not suffice for legally enforceable instructions nor will vague appointments of who should carry them out. between family members regarding a loved one’s remains, it is increas ingly more important in estate plan ning to create and implement a form that declares, premortem, how your clients wish to be buried once they are deceased. At the very least, in an effort to avoid potential postmortem disputes, estate planning attorneys should have a conversation with cli ents providing their options. Given the unique Oklahoma statutes, the options and application of these forms in estate planning practices can alleviate additional costs and conflicts for clients and their fami lies in an already difficult time right after they have lost a loved one. CONCLUSION Given the increased disputes

fills in this gap by setting forth specific requirements. Section 1158 reads as follows: The right to control the disposition of the remains of a deceased person, the loca tion, manner and conditions of disposition, and arrange ments for funeral goods and services vests in …

Ms. Worth received her law degree from the Ohio State University Moritz College of Law and her undergraduate degree from OSU. ENDNOTES 1. Raymond Louis Brennan, The Law Governing Cemetery Rules and Regulations 66 (2d ed. 1951). 2. 21 O.S. §1151. 3. Thorpe v. Borough of Jim Thorpe , 770 F.3d 255 (2014). 4. Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023). 5. Thorpe v. Borough of Jim Thorpe , 770 F.3d 255 (2014). 6. Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023). 7. Id. 8. Id. 9. Thorpe v. Borough of Jim Thorpe , 770 F.3d 255 (2014). 10. Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023). 11. Times Staff, “Ted Williams’ daughter ends fight over remains Tampa Bay Times,” (2019), https://bit.ly/3S3Tt8U (last visited Oct. 28, 2023). 12. Abby Goodnough, “Parties Face Off Over Burial Site for Anna Nicole Smith,” New York Times , Feb. 21, 2007, https://bit.ly/48iUEqv (detailing a dispute regarding burial location between parties including Ms. Smith’s companion, her mother, her ex-boyfriend and her infant daughter). 13. “Fiancée says Kirby Puckett wanted ashes spread on ball field,” The Times of Northwest Indiana , May 16, 2006, https://bit.ly/3vcLw8b (detailing a dispute between Mr. Puckett’s children and his fiancée over the possession and disposition of the cremated ashes). 14. “Agreement reached over burial for James Brown,” Reuters, Feb. 21, 2007, https://bit.ly/3RKGkQr (detailing a dispute between Mr. Brown’s partner and children regarding the burial place, whether the partner was legally married to Mr. Brown and a pending paternity case in which DNA needed to be extracted from Mr. Brown’s body). 15. 21 O.S. §§1151, 1158(1) and (2). 16. In re Estate of Downing , 2021 OK 17, 489 P.3d 9. 17. Id. 18. Id. 19. Id. 20. Id. 21. Id. 22. Id. 23. Foresee v. Foresee ( In re Estate of Foresee ), 2020 OK 88, 475 P.3d 862. 24. Id. 25. In re Estate of Downing , 2021 OK 17, 489 P.3d 9.

1. The decedent, provided the decedent has entered into a pre-need funeral ser vices contract or executed a written document that meets the requirements of the State of Oklahoma; 22

Such requirements by the state of Oklahoma are for the document to be executed in a sworn affida vit, clearly stating the assignment of the rights and the name of the person or persons to whom the right to dispose of the body has been assigned. Foresee v. Foresee . Another case providing guidance is Foresee v. Foresee , where the court held that a will, in order to suffice for instruction for how a person wants their body disposed of, must clearly state that the executor (or another individual) is assigned the explicit and clear right to dispose of the body. 23 Foresee 24 was similar to Downing , 25 where the deceased only made oral wishes for after his death. Specifically, his will instructed his personal repre sentatives to pay debts associated with the deceased’s “last illness, funeral, and burial.” 26 Through his oral instructions and this portion of the will, the personal represen tatives believed they were the ones who had the right to dispose of the deceased’s body. 27 However, when

ABOUT THE AUTHOR

Darcy N. Worth is an associate at Sherwood, McCormick & Robert, where she primarily handles estate planning

and probate matters. She has a passion for educating clients on the importance of estate planning and how it can benefit every family. Prior to Sherwood, McCormick & Robert, she held a legal role at a financial management company.

26. Id. 27. Id. 28. Id.

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.

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