TITLE 12

Decedents' Estates and Fiduciary Relations

Wills

CHAPTER 2. GENERAL PROVISIONS

Subchapter III. Disposition of a Person's Last Remains


As used in this subchapter, unless the context otherwise requires:

(1) "Adult'' means a natural person 18 years of age or older.

(2) "Declarant'' means a competent adult who signs a declaration pursuant to the provisions of this article.

(3) "Declaration instrument'' means a written instrument, signed by a declarant, governing the disposition of the declarant's last remains and the ceremonies planned after a declarant's death, including a document governing the disposition of last remains under this title or a United States Department of Defense Record of Emergency Data Form (DD Form 93) or any successor form executed by the declarant. Such a declaration may be made within a prepaid funeral, burial, or cremation contract with a mortuary or crematorium.

(4) "Interested person'' means the deceased's spouse, parent, adult child, sibling, grandchild, and other person designated in a declaration instrument.

(5) "Last remains'' means the deceased's body or cremains after death.

(6) "Reasonable under the circumstances'', applied to the declarant's instructions, means appropriate in relation to the declarant's finances, cultural or family customs, and religious or spiritual beliefs. "Reasonable under the circumstances'' implies consideration of factors that include, but are not limited to, a prepaid funeral, burial or cremation plan of the declarant; the size of the declarant's estate; the declarant's cultural or family customs; the declarant's religious or spiritual beliefs; and the known or reasonably ascertainable creditors of the declarant.

(7)a. "Third party'' means a person:

1. Who is requested by a declaration instrument to act in good faith in reliance upon such instrument;

2. Who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument under § 264 of this title; or

3. Who is delegated discretion over ceremonial or dispositional arrangements in a declaration instrument.

b. "Third party'' includes, but is not limited to, a funeral director, mortician, mortuary, crematorium, or cemetery.

(8) "Unreasonable'' means an act that is clearly unreasonable, pursuant to the definition of "reasonable under the circumstances'' under paragraph (6) of this section.

74 Del. Laws, c. 295, § 1; 77 Del. Laws, c. 296, § 1.;

This subchapter shall not be construed to:

(1) Invalidate a declaration instrument or will, codicil, trust, power of appointment or power of attorney;

(2) Invalidate any act of an agent, guardian, or conservator;

(3) Affect any claim, right or remedy that accrued prior to June 30, 2004;

(4) Authorize or encourage acts that violate the constitution, statutes, rules, case law or public policy of Delaware or the United States;

(5) Abridge contracts;

(6) Modify the standards, ethics or protocols of the practice of medicine;

(7) Compel or authorize a health care provider or health care facility, to administer medical treatment that is medically inappropriate or contrary to federal or other Delaware law; or

(8) Permit or authorize euthanasia or an affirmative or deliberate act to end a person's life.

74 Del. Laws, c. 295, § 1.;

The declarant may specify, in a declaration instrument, any 1 or more of the following:

(1) The disposition to be made of the declarant's last remains;

(2) Who may direct the disposition of the declarant's last remains;

(3) The ceremonial arrangements to be performed after the declarant's death;

(4) Who may direct the ceremonial arrangement after the declarant's death; or

(5) The rights, limitations, immunities, and other terms of third parties dealing with the declaration instrument.

74 Del. Laws, c. 295, § 1.;

(a) A third party who acts in good faith reliance on a declaration instrument that is legally executed shall not be subject to civil liability to any greater extent than if the third party were dealing directly with the declarant as a fully competent and living person. Such third party shall not be subject to criminal liability or regulatory sanction for such reliance.

(b) A third party who deals with a declaration instrument may presume in the absence of actual knowledge to the contrary:

(1) That the declaration instrument was validly executed; and

(2) That the declarant was competent at the time the instrument was executed.

(c) A third party who reasonably relies on a declaration instrument shall not be civilly or criminally liable for the proper application of property delivered or surrendered to comply with the declarant's instructions in the declaration instrument.

(d) The directions of a declarant expressed in a declaration instrument shall be binding on all persons as if the declarant were alive and competent.

(e) A third party who has reasonable cause to question the authenticity or validity of a declaration instrument may promptly and reasonably seek additional information from the person proffering such declaration or from other involved persons. A third party may require exhibition of the original declaration instrument or a notarized copy.

(f) A third party seeking to fulfill a declarant's intent regarding disposition of last remains or ceremonial arrangements may disregard such intent if such intent is unreasonable under the circumstances.

74 Del. Laws, c. 295, § 1.;

(a) The right to control disposition of the last remains or ceremonial arrangements of a decedent vests in and devolves upon the following persons, at the time of the decedent's death, in the following order:

(1) The decedent if acting through a declaration instrument;

(2) The surviving spouse of the decedent, if not legally separated from the decedent;

(3) Either the appointed personal representative or administrator of the decedent's estate if such person has been appointed; or the nominee for appointment as personal representative under the decedent's will if a personal representative or administrator has not been appointed;

(4) A majority of the surviving adult children of the decedent whose whereabouts are reasonably ascertainable;

(5) The surviving parents or legal guardians of the decent whose whereabouts are reasonably ascertainable;

(6) A majority of the surviving adult siblings of the decedent whose whereabouts are reasonably ascertainable;

(7) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent. If there is more than 1 person of the same degree, any person of that degree may exercise the right of disposition;

(8) In the absence of any person under paragraphs (a)(1) through (a)(6) of this section, any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the personal representative of the decedent's estate or the funeral director with the custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals under paragraphs (a)(1) through (a)(6) of this section;

(9) The public administrator for the decedent's estate.

(b) To exercise the right to control final disposition pursuant to paragraph (a)(5) of this section, the majority of parents and guardians shall act in writing.

(c) If the assent of multiple persons under paragraphs (a)(4), (a)(5), or (a)(6) of this section cannot be obtained, a final judgment of the Chancery Court of the county of the decedent's residence shall be required to exercise the right to control final disposition. Such final judgment shall be consistent with the decedent's last wishes to the extent they are reasonable under the circumstances.

(d) Notwithstanding any provision of this subchapter to the contrary, a United States Department of Defense Record of Emergency Data Form (DD Form 93) executed by a declarant who thereafter dies while serving in any branch of in the United States Military, as defined 10 U.S.C. § 1481, shall constitute a valid form of declaration instrument and shall govern the disposition of such declarant's last remains, unless a subsequent declaration instrument has been executed by the declarant.

74 Del. Laws, c. 295, § 1; 76 Del. Laws, c. 112, § 1; 77 Del. Laws, c. 296, § 2.;

The following declaration of disposition of last remains must be substantially in the following form:

I, ____________ (Name of Declarant), being of sound mind and lawful age, hereby revoke all prior declarations, wills, codicils, trusts, powers of appointment, and powers of attorney regarding the disposition of my last remains, and I declare and direct that after my death the following provisions be taken:

1. If permitted by law, my body shall be (Initial ONE choice):

__ Buried. I direct that my body be buried at .

__ Cremated. I direct that my cremated remains be disposed of as follows:

.

__ Entombed. I direct that my body be entombed at .

__ Other. I direct that my body be disposed of as follows:

.

__ Disposed of as ____________ (Name of Designee) shall decide in writing. If

2. I request that the following ceremonial arrangements be made (initial desired choice or choices):

__ I request ____________ (Name of designee) make all arrangements for any ceremonies, consistent with my directions set forth in this declaration. If

__ Funeral. I request the following arrangements for my funeral:

.

__ Memorial Service. I request the following arrangements for my memorial service:

.

3. Special Instructions. In addition to the instructions above, I request (on the following lines you may make special requests regarding ceremonies or lack of ceremonies):

.

Note: Those persons or entities asked to carry out a declarant's intent regarding disposition of last remains and ceremonial arrangements need do so only if the declarant's intent is reasonable under the circumstances. "Reasonable under the Circumstances'' may take into consideration factors such as a known prepaid funeral, burial, or cremation plan of the declarant, the size of the declarant's estate, cultural or family customs, the declarant's religious or spiritual beliefs, the known or reasonably ascertainable creditors of the declarant, and the declarant's financial situation prior to death.

I may revoke or amend this declaration in writing at any time. I agree that a third party who receives a copy of this declaration may act according to it. Revocation of this declaration is not effective as to a third party until the third party learns of my revocation. My estate shall indemnify any third party for costs incurred as a result of claims that arise against the third party because of good-faith reliance on this declaration.

I execute this declaration as my free and voluntary act, on .

                         (Declarant) .

The following section regarding organ and tissue donation is optional. To make a donation, initial the option you select and sign below.

In the hope that I might help others, I hereby make an anatomical gift, to be effective upon my death, of:

A. __ Any needed organs/tissues.

B. __ The following organs/tissues:

.

Donor signature: .

Notarization Optional:

State of Delaware

County of ______ :

Acknowledged before me by ______________, Declarant, on ______, __. My commission expires:

*(Seal)                          Notary Public .

74 Del. Laws, c. 295, § 1.;

(a) The form set forth in § 265 of this title is not exclusive, and a person may use another form of declaration instrument if the wording of the form complies substantially with § 265 of this title, the form is properly completed, and the form is in writing, dated, and signed by the declarant.

(b) A declaration instrument may be acknowledged, but lack of acknowledgment shall not render the declaration ineffective.

(c) This subchapter shall apply to declaration instruments executed or exercised in Delaware and to declaration instruments signed or exercised by a person who is a resident of Delaware when such instrument is signed or exercised.

(d) The provisions of the most recent declaration instrument shall control over any other document regarding the disposition of the last remains.

74 Del. Laws, c. 295, § 1.;

A declaration may be revoked by the declarant in writing or by burning, tearing, canceling, obliterating, or destroying the declaration instrument with the intent to revoke such instrument.

74 Del. Laws, c. 295, § 1.;

Unless otherwise expressly provided in a declaration instrument, a subsequent divorce, dissolution of marriage, annulment of marriage, or legal separation between the declarant and spouse automatically revokes a delegation to the declarant's spouse to direct the disposition of the declarant's last remains or ceremonies after the declarant's death. This section shall not be construed to revoke the remaining provisions of the declaration instrument.

74 Del. Laws, c. 295, § 1.;

Unless otherwise specified in the declaration instrument, if a declarant revokes a delegation to a person to direct the disposition of the declarant's last remains or ceremonies after the declarant's death, or if such person is unable or unwilling to serve, the nomination of such person shall be ineffective as to such person. If an alternate designee is not nominated by the declarant, § 264 of this title shall govern. This section shall not be construed to revoke the remaining provisions of the declaration instruments.

74 Del. Laws, c. 295, § 1.;

(a) Unless otherwise stated in a declaration instrument, it shall be presumed that the declarant intends to have that declarant's own declaration instrument executed pursuant to this subchapter and recognized to the fullest extent possible by other states.

(b) Unless otherwise provided in the declaration instrument, a declaration instrument or similar instrument executed in another state that complies with the requirements of this subchapter may, in good faith, be relied upon by a third party in this State if an action requested by such declarant does not violate any law of the federal government, Delaware, or a political subdivision.

74 Del. Laws, c. 295, § 1; 70 Del. Laws, c. 186, § 1.;