MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary, Division A
By: Senator(s) England
AN ACT TO AMEND SECTION 73-11-58, MISSISSIPPI CODE OF 1972, TO PRECLUDE AT FAULT PARTIES FROM DECIDING THE DISPOSITION OF A DECEDENT'S REMAINS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-11-58, Mississippi Code of 1972, is amended as follows:
73-11-58. (1) If a decedent has left no written authorization for the cremation and/or disposition of the decedent's body as permitted by law, any of the following persons, in the order of priority listed below, may authorize any lawful manner of disposition of the decedent's body by completion of a written instrument:
(a) The person designated by the decedent as authorized to direct disposition pursuant to Public Law No. 109-163, Section 564, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died during military service, as provided in 10 USC Section 1481(a)(1) through (8), in any branch of the United States Armed Forces, United States Reserve Forces or National Guard.
(b) The surviving spouse.
(c) A surviving child who is at least eighteen (18) years of age.
(d) A grandchild who is at least eighteen (18) years of age.
(e) Either surviving parent.
(f) A surviving sibling who is at least eighteen (18) years of age.
(g) A person acting as a representative of the decedent under a signed authorization of the decedent.
(h) The guardian of the person of the decedent at the time of the decedent's death, if a guardian has been appointed.
(i) A person in the class of the next degree of kinship, in descending order, who, under state law, would inherit the decedent's estate if the decedent died intestate and who is at least eighteen (18) years of age.
(j) A person who has exhibited special care and concern for the decedent and is willing and able to make decisions about the cremation and disposition.
(k) In the case of individuals who have donated their bodies to science or whose death occurred in a nursing home or private institution and in which the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution may serve as the authorizing agent in the absence of any of the above.
(l) In the absence of any of the above, any person willing to assume responsibility for the cremation and disposition of the decedent.
(m) In the case of indigents or any other individuals whose final disposition is the responsibility of the state or any of its instrumentalities, a public administrator, medical examiner, coroner, state-appointed guardian, or any other public official charged with arranging the final disposition of the decedent may serve as the authorizing agent.
(2) The provisions of subsection (1) shall not apply to any listed person, regardless of priority, when that person has been finally adjudicated by a court of competent jurisdiction to be at fault for the decedent's death, whether that liability be criminal or civil. Such persons shall be barred and precluded from deciding the disposition of the decedent's body.
(a) Upon motion by the State or any person listed in subsection (1) in the chancery court of the county of the decedent's residence, the chancellor shall designate the next available person listed in subsection (1) and such person may then authorize any lawful manner of disposition of the decedent's body by completion of a written instrument.
(b) If a criminal prosecution arising from the decedent's death is actively ongoing at the time of the disposition of the decedent's remains, the chancellor may request a bond be filed with the court in the sum of Five Thousand Dollars ($5,000.00) by the moving party before granting the motion.
( * * *3) No funeral establishment shall accept
a dead human body from any public officer or employee or from the official of any
institution, hospital or nursing home, or from a physician or any person having
a professional relationship with a decedent, without having first made due inquiry
as to the desires of the persons who have the legal authority to direct the disposition
of the decedent's body. If any persons are found, their authority and directions
shall govern the disposal of the remains of the decedent. Any funeral establishment
receiving the remains in violation of this subsection shall make no charge for any
service in connection with the remains before delivery of the remains as stipulated
by the persons having legal authority to direct the disposition of the body. This
section shall not prevent any funeral establishment from charging and being reimbursed
for services rendered in connection with the removal of the remains of any deceased
person in case of accidental or violent death and rendering necessary professional
services required until the persons having legal authority to direct the disposition
of the body have been notified.
( * * *4) A person who does not exercise his or
her right to dispose of the decedent's body under subsection (1) of this section
within five (5) days of notification or ten (10) days from the date of the death,
whichever is earlier, shall be deemed to have waived his or her right to authorize
disposition of the decedent's body or contest disposition in accordance with this
section. If, during the aforesaid time period, the funeral director, funeral service
practitioner and/or funeral establishment has been provided contrary written consent
from members of the same class with the highest priority as to the disposition of
the decedent's body, the licensed funeral director or service practitioner or funeral
establishment shall act in accordance with the directive of the greatest number
of consents received from members of the class. If that number is equal, the funeral
director or funeral service practitioner and/or the funeral establishment shall
act in accordance with the earlier consent unless the person(s) providing the later
consent is granted an order from a court of competent jurisdiction in which the
funeral establishment is located.
( * * *5) If no consent for the embalming, cremation
or other disposition of a dead human body from any of the relatives or interested
persons or institutions listed above in subsection (1) is received within ten (10)
days of the decedent's death, the coroner for, or other person designated by, the
county in which the funeral establishment is located is authorized to sign the consent
authorizing the disposition of the decedent's remains.
( * * *6) If none of the parties listed above
in subsection (1) is financially capable of providing for the cremation, embalming
or disposition of a dead human body, the coroner for, or other person designated
by, the county in which the funeral establishment is located is authorized to sign
the consent authorizing the disposition of the decedent's remains.
( * * *7) The licensed funeral director, funeral
service practitioner or funeral establishment shall have authority to control the
disposition of the remains of a decedent and proceed to recover the costs for the
disposition when: (a) none of the persons or parties described above in subsection
(1)(a) through (l) assume responsibility for the disposition of the remains, and
(b) the coroner or other public official designated in subsection (1)(m) fails to
assume responsibility for disposition of the remains within seven (7) days after
having been given written notice of the facts. Written notice may be made by personal
delivery, United States mail, facsimile or transmission. The method of disposition
must be in the least costly and most environmentally sound manner that complies
with law, and that does not conflict with known wishes of the decedent.
( * * *8) A funeral director, funeral service
and/or funeral establishment licensee acting in accordance with this section, or
attempting in good faith to act in accordance with this section, shall not be subject
to criminal prosecution or civil liability for carrying out the otherwise lawful
instructions of the person or persons described in this section.
( * * *9) The liability for the reasonable cost
of the final disposition of the remains of the decedent devolves upon the individual
or entity authorizing the disposition and/or upon the estate of the decedent and,
in cases when the county board of supervisors has the right to control the disposition
of the remains under this section, upon the county in which the death occurred.
SECTION 2. This act shall take effect and be in force from and after July 1, 2023.