The second day of Heckerling concluded with a program on the intersection of religious beliefs and estate planning. Presented by Lauren J. Wolven, Tanya D. Marsh and Stacy E. Singer, the session, “Planning to Meet One’s Maker: The Intersection of Religious Beliefs and Estate Planning,” touched on the less-talked-about subject of burial rights and practices and how they affect your client.
Disposition Laws
The panelists opened the session by discussing the history of legal disposition in America. One interesting takeaway was that, in the United States, burial was the only legal method of disposing of remains until the late 19th/early 20th century, when cremation became legal.
As America becomes increasingly multicultural, many foreign cultural practices and beliefs are incorporated into American life. In addition to a diverse range of religions being practiced, technological developments have introduced new burial methods and alternatives to burial. Innovations, such as resomation and eternal reefs, are gaining popularity due to an increased interest in environmental responsibility. Cryopreservation has also garnered interest among the ultra-high-net-worth crowd and may become more popular in the future. Some are also choosing to donate their body to science.
Another interesting tidbit was that, according to statistics, cremation has become the leading method of disposition in the United States. In 2024, the cremation rate in the United States is predicted to be nearly 62% of all dispositions of remains.
State Specific
There’s no overarching federal law dictating the disposition of remains. Instead, each state has its own regulations governing burial practices, cremation, organ donation and other disposition methods. While many clients lay out their wishes for their burial in their estate-planning documents, they may be surprised to learn that the law of the state they die in is the one that governs their disposition, not the state where their will was drafted. Therefore, if clients have residences in more than one state, it’s imperative to consider what happens if they die out of state. For example, under Florida Law, the disposition of a body isn’t a property right but rather a personal right of the decedent.
Burial Traditions
Trusts and estate lawyers may encounter unfamiliar legal issues when helping their clients plan for end-of-life and burial. The panelists posited that because the very first rule of the ABA Model Rules of Professional Conduct calls for competent representation, competent attorneys ought to educate themselves on the variety of burial practices and beliefs they might encounter in their practice.
Religion and culture play a major role in an individual’s beliefs about death and end-of-life ceremonies. In the next portion of their session, the panelists discussed the religious traditions of the 18 main religions of the world. Within each of those traditions are multiple sects that hold different beliefs and engage in differing practices. They stressed the importance of planners familiarizing themselves with these practices to create an environment of open communication with clients about their end-of-life decisions.
Being thoughtful about the psychological impact of what clients and their families experience in the world can help attorneys better elicit information and encourage open communication. By expanding their cultural competency by learning about different religious and cultural traditions around death, planners can also help clients avoid violating laws regarding the disposition of remains.
