Representatives from Nebraska’s death care industry will be meeting this fall to discuss the Department of Insurance’s preneed legislative proposal, and the right of sepulcher will be among the issues for discussion.
Nebraska is among the states that have statutory provisions defining the priority of individuals who may claim the right of sepulcher (which is the right to control the disposition of the decedent’s body). This is an important issue for the death care industry because of the disputes that can arise after death. A law review article examining the Missouri right of sepulcher describes some of the legal disputes that funeral homes and cemeteries have encountered. While the Missouri law was a step forward in recognizing that an individual has the right to designate the ‘next of kin’, the law review article is on point with its recommendation that individuals need easier ways to give their right of sepulcher to a life partner, or an individual other than a surviving spouse or child.
Nebraska law is unique in that it lists a preneed contract as a document where a decedent could give instructions contrary to the law’s list of the ‘next of kin’. But the statute goes on to create a high threshold for designating the right of sepulcher. Unless an individual uses his/her will to address the right of sepulcher, the law requires a notarized affidavit. That requirement is very similar to that required by the Missouri law. The challenge for a Nebraska funeral home would be to convince a court that a decedent intended that the preneed contract to be used for purposes of either Section 38-1425 or Section 38-1426. The changes intended for Nebraska’s Pre-Need Burial Act provide the industry an opportunity to clarify when a preneed contract can be used to both vest the right of sepulcher and the manner of disposition.