THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY COHEN, BOBACK, BELFANTI, GEORGE, JOSEPHS, CALTAGIRONE, BEAR, CASORIO, CREIGHTON, EVERETT, GEIST, GOODMAN, HARHAI, HARKINS, HENNESSEY, HORNAMAN, MAHONEY, MIRABITO, MURT, SIPTROTH, K. SMITH, SOLOBAY, VULAKOVICH, WATERS, YOUNGBLOOD AND KILLION, JANUARY 5, 2010

REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 5, 2010  

AN ACT

Amending Title 20 (Decedents, Estates and Fiduciaries) of the

Pennsylvania Consolidated Statutes, further providing for

right to dispose of a decedent's remains.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 305 of Title 20 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 305.  Right to dispose of a decedent's remains.

(a)  General rule.--The determination of the final

disposition of a decedent's remains shall be as set forth in

this section unless otherwise specifically provided by DD Form

93 or waiver and agreement of the person entitled to make such

determination under this section, subject to the provisions of a

valid will executed by the decedent and section 8611(a)

(relating to persons who may execute anatomical gift).

(b)  Disposition of the remains of a deceased spouse.--Absent

an allegation of enduring estrangement, incompetence, contrary

intent or waiver and agreement which is proven by clear and

convincing evidence, a surviving spouse shall have the sole

authority in all matters pertaining to the disposition of the

remains of the decedent.

(c)  Disposition of the remains of others.--If there is not a

surviving spouse, absent an allegation of enduring estrangement,

incompetence, contrary intent or waiver and agreement which is

proven by clear and convincing evidence, the next of kin shall

have sole authority in all matters pertaining to the disposition

of the remains of the decedent.

(d)  Procedure.--Where a petition alleging enduring

estrangement, incompetence, contrary intent or waiver and

agreement is made within 48 hours of the death or discovery of

the body of the decedent, whichever is later, a court may order

that no final disposition of the decedent's remains take place

until a final determination is made on the petition. Notice to

each person with equal or higher precedence than the petitioner

to the right to dispose of the decedent's remains and to his

attorney if known and to the funeral home or other institution

where the body is being held must be provided concurrently with

the filing of the petition. A suitable bond may be required by

the court.

(1)  If the court determines that clear and convincing

evidence establishes enduring estrangement, incompetence,

contrary intent or waiver and agreement, the court shall

enter an appropriate order regarding the final disposition

which may include appointing an attorney in fact to arrange

the final disposition, with reasonable costs chargeable to

the estate.

(2)  If two or more persons with equal standing as next

of kin disagree on disposition of the decedent's remains, the

authority to dispose shall be determined by the court, with

preference given to the person who had the closest

relationship with the deceased.

(3)  If the court determines that the petition is not

supported by a clear and convincing evidence, the court may

award attorney fees. An award of attorney fees shall

constitute a setoff against any claim by the petitioner

against the estate.

(e)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Contrary intent."  An explicit and sincere expression,

either verbal or written, of a decedent adult or emancipated

minor prior to death and not subsequently revoked that a person

other than the one authorized by this section determine the

final disposition of his remains.

"DD Form 93."  A valid document or a successor form provided

by the Department of Defense that is signed by a member of the

armed services and designates a person to direct the disposition

of the remains of the person who signed the form.

"Enduring estrangement."  A physical and emotional separation

from the deceased at the time of death of the person authorized

by this section to determine the final disposition of the

decedent's remains, which has existed for a period of time that

clearly demonstrates an absence of due affection, trust and

regard for the deceased.

"Next of kin."  The spouse and relatives by blood of the

deceased in order that they be authorized to succeed to the

deceased's estate under Chapter 21 (relating to intestate

succession) as long as the person is an adult or an emancipated

minor.

Section 2.  This act shall take effect in 60 days.