Interesting (and untimely) legal lesson about cremation: should I have just lied and told them we w

M1

I hope this might be helpful to someone else, for me it's been a huge headache and unnecessary firedrill on an already fraught Friday afternoon. And importantly, something that neither my memory care contacts nor the hospice social workers were aware of. And that the cremation company didn't catch until this afternoon, even though they told me all the paperwork was complete six months ago.

My partner and I are not married and she has no children. We've been together for 30 years and saw no need to legalize it, neither of us needed the other's social security benefit, for example. I've held her powers of attorney for most of that time period. I am also named in her will as her personal representative as well as executor. Here's the crucial point: it's being named in the will as personal representative that allows me to sign the cremation consent when she dies. All powers of attorney expire at death, and a cremation consent cannot be signed premortem. Therefore, if I weren't named in the will itself, i would not be able to sign, and we went around and around about this today. Her technical next of kin is her only surviving sister in Texas. Who fortunately i have a good relationship with--but geez, everyone had this wrong. I'm most chagrined that the cremation rep who had told me all was in order six months ago hadn't in fact bothered to read what i sent them until today. So lesson being, check your paperwork, dot your i's etc. Interestingly, no one ever asks to see the marriage license. I should obviously have just lied and told them we were married and they likely would never have made an issue of it. But that would then affect the death certificates too. Complicated stuff.

Nowhere

Oh, for heaven’s sake. This seems ridiculous as you’ve been partners for thirty years and she named you as her power of attorney. That she would trust you to the endsof life, but not after is 🤯.

Thanks for sharing for others who fit this scenario. Sorry you had to give it any thought during this time of sorrow.

GothicGremlin

I'm so sorry you had to work through this headache as well as everything else.

Thank you for posting what you're going through. I know it must be incredibly painful for you, but you've brought up some very important issues that people should be aware of, and may not be.

I would say to everyone here in a similar situation, it's important that if you aren't married, or aren't in a domestic partnership, it's important to find out what your state requires so that you don't end up with an unpleasant surprise at the end of life. @M1 I'm glad you didn't lie though because you're right, lying now would take care of this immediate problem, but would create new ones down the line.

Like you said, a POA expires at death, so it's important to have everything ready before that time. Thing is, with a spouse-like relationship, if you aren't actually married, you fall into the scenario that you did. It makes no sense on an emotional level, but legally, t's must be crossed, and i's must be dotted.

Back in the day, the 1990s, when I was in law school (California), I took wills and trusts.

Back then, same sex marriage was not legal, so people had to find workarounds. A common tactic was adoption, because with that kind of a relationship you're each other's next of kin. You could make all of the end of life decisions, and probably more important emotionally, was to be able to be by your partner's side in the hospital. I bring all of this up because unmarried straight couples today are in the same legal miasma that same sex couples were in back in the day.

Some years later, domestic partnerships were created. This took away the need for adoption.

Finally, the Supreme Court ruled in Obergfell v. Hodges that same sex marriage is legal. The link is to the wikipedia page on this case, and if this issue is important to you, take a look at the cases Obergfell relied on for the decision - some familiar ones are listed. Then you can decide how stable you think this case is.

I'm sorry this post is so long, but I think it's important to know that some of the benefits of a formal marriage or domestic partnership are the end of life decisions we have to make.

fmb

Thank you for sharing this information. DH has a prepaid funeral policy in place, but I need to change some of the arrangements with the funeral home. I had thought I might do it when he dies, but I probably should do it now while I still hold his POA.

That type of scenario is why DH and I were married in a civil ceremony 15 years ago even after living together for 4-1/2 years before that. It has made it much easier for me to take care of his legal and medical needs. Fortunately back in 2016 we had Wills, DPOAs and HCPOAs/Living Wills drawn up naming each other in the responsible positions. Another factor was that DH's avaricious daughter could challenge his will and possibly exclude me from the estate if we were not married. In PA the spouse is entitled to a certain portion of the estate by law, making the daughter much less likely to challenge the will.

At the time of our civil wedding, neither of us were practicing a religion. I recently returned to my church of origin, and DH was baptized in the same denomination Sep. 30. This denomination does not recognize civil marriage, so on Oct. 13 (our 15th wedding anniversary), a convalidation ceremony was performed to marry us within the church and make our marriage valid under church law. This will enable him to have a full funeral and be buried from the church.

If the deceased lived in a state (like PA) with an inheritance tax, the rates differ greatly depending on the degree of relationship of the inheritor to the deceased. In PA the rate for a spouse is 0%, but the rate for an unrelated person (such as non-married partners) is 15%.

I personally knew a long-time non-married couple who were permanently separated from each other when the woman was put in a nursing home and her kids forbade visits by her male partner. They would not have been able to do that if the couple had been legally married.

JeriLynn66

My late FIL had to sign a document stating I was the person who could act and have his arrangements executed upon his death. Alabama. I found this out making pre-arrangements. I also had a will naming me Personal Representative but that would not have been sufficient.

Emily 123

Yes, M1, and typically thoughtful of you to post about this snag with everything else going on. I'm HCPOA for my mom, while older brother is POA—this will definitely help us as I've just begun looking at cremation providers. Thank you.

White Crane

Sometimes these things just don't make sense. I've run into a big hassle just trying to change my husbands address with Social Security and we have been married 57 years and I hold his DPOA. I'm so sorry you are having to deal with this during this time.

Brenda

Quilting brings calm

When my step-dad died, I took mom to the funeral home to make the arrangements for him. While I was there, she told the funeral director her wishes for herself. He created a document stating her wishes, with a clause stating that her wishes could not be changed by others. So thankfully that hassle is done. Because getting my siblings to sign anything later would be problematic due to their lack of interest.

@White Crane When we moved my parents back to our state, we changed my parent’s address at social security on their behalf with a typed letter sent to the local social security office. Since then I had to talk to them by phone when my step-dad died, and that required her to be sitting next to me and giving verbal permission. So who knows what will happen when I have to change the address again in a few months

nancyj194

M1, I have a question about your delimma. After 30 years, are you now considered in a common law marriage? I would assume so, but there are rules that exist in each state, so check them out.

cdgbdr

Thanks for sharing. DH is in mid-stages of dementia and we had all of our legal things taken care of recently. He was able to sign and it was clear he understood what we were doing. We live in Ohio and a document for responsibility for funeral/post mortem arrangements was part of it. I didn't realize these implications. We are married with no children so once we're gone someone will need that.

M1

Good question about the common law marriage, I don't think it exists in our state. Further upshot, if you see our other thread, she did indeed die this morning and the cremation people changed their tune AGAIN and ultimately said that even the will was not sufficient because it didn't explicitly say cremation authorization—-so again, seesawed with mixed messages all day long, finally ended up just getting her sister to sign, so done and dusted. But what a pain—and obviously a confusing area where even the experts aren't sure. The good news for us was no conflict with her sister, but what if there had been? So again: hopefully posting about this will get others to think twice about the language involved. And it seems specific to cremation—-why does cremation require consent, while traditional embalming and burial does not? Kinda weird and discriminatory. But I'm not gonna waste any more time one it at this point.

JJ401

I’m in a second marriage. No children together. Both have adult children from a previous marriage.

In my state, if there is no spouse, control of the funeral arrangements passes to the children equally. This is fine if the children can agree. (Mine can.)

However, for various reasons, if I predecease him, one of DH’s children should not have any control of his funeral. Funeral director told me that we are not the only family with this issue so the state has a form that can be filled out to give funeral control to one child over another. It can also be used to give control over arrangements to a life partner or other relative.

clarinetist

Quilting, you can apply to be your mom’s representative payee for Social Security. Then you can talk to them without your mom being present.

Caro_Lynne

My state, Florida, does not recognize common law marriage. Since I am the executrix/personal rep on my LO's will I was able to schedule his cremation with no issues. Every state is different. Thanks M1 for brining this to our attention.

Dio

M1, so sorry you had to go through this nonsense. But thanks for sharing to alert others. Common sense seems nonexistent these days…so sad. Here in CA, we have a separate Advanced Healthcare Directive that addresses post mortem wishes. I certainly hope there won't be any loopholes when the time comes.

Carl46

Common law marriage, in States that recognize such, requires that the couple show intent to be married by holding themselves out to the public as a married couple. If two people call themselves "partners" or "girlfriend/boyfriend" they aren't married, even if they live together for many years in a common law State and have children together.