Pennsylvania Act 1998-99 — PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.) - AMEND

Act text

PROBATE, ESTATES AND FIDUCIARIES CODE (20 PA.C.S.) - AMEND
                  Act of Nov. 17, 1998, P.L. 786, No. 99              Cl. 20
                             Session of 1998
                               No. 1998-99

     HB 1304

                                  AN ACT

     Amending Title 20 (Decedents, Estates and Fiduciaries) of the
        Pennsylvania Consolidated Statutes, providing for disposition
        of remains of a deceased party.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 20 of the Pennsylvania Consolidated
     Statutes is amended by adding a section to read:
      § 305.  Right to dispose of a decedent's remains.
        (a)  General rule.--The determination of the final
     disposition of a decedent's remains shall be as set forth in
     this section unless otherwise specifically provided by waiver
     and agreement of the person entitled to make such determination
     under this section, subject to the provisions of a valid will
     executed by the decedent and section 8611(a) (relating to
     persons who may execute anatomical gift).
        (b)  Disposition of the remains of a deceased spouse.--Absent
     an allegation of enduring estrangement, incompetence, contrary
     intent or waiver and agreement which is proven by clear and
     convincing evidence, a surviving spouse shall have the sole
     authority in all matters pertaining to the disposition of the
     remains of the decedent.
        (c)  Disposition of the remains of others.--If there is not a
     surviving spouse, absent an allegation of enduring estrangement,
     incompetence, contrary intent or waiver and agreement which is
     proven by clear and convincing evidence, the next of kin shall
     have sole authority in all matters pertaining to the disposition
     of the remains of the decedent.
        (d)  Procedure.--Where a petition alleging enduring
     estrangement, incompetence, contrary intent or waiver and
     agreement is made within 48 hours of the death or discovery of
     the body of the decedent, whichever is later, a court may order
     that no final disposition of the decedent's remains take place
     until a final determination is made on the petition. Notice to
     each person with equal or higher precedence than the petitioner
     to the right to dispose of the decedent's remains and to his
     attorney if known and to the funeral home or other institution
     where the body is being held must be provided concurrently with
     the filing of the petition. A suitable bond may be required by
     the court.
            (1)  If the court determines that clear and convincing
        evidence establishes enduring estrangement, incompetence,
        contrary intent or waiver and agreement, the court shall
        enter an appropriate order regarding the final disposition
        which may include appointing an attorney in fact to arrange
        the final disposition, with reasonable costs chargeable to
        the estate.
            (2)  If two or more persons with equal standing as next
        of kin disagree on disposition of the decedent's remains, the
        authority to dispose shall be determined by the court, with
        preference given to the person who had the closest
        relationship with the deceased.
            (3)  If the court determines that the petition is not
        supported by a clear and convincing evidence, the court may
        award attorney fees. An award of attorney fees shall
        constitute a setoff against any claim by the petitioner
        against the estate.
        (e)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Contrary intent."  An explicit and sincere expression,
     either verbal or written, of a decedent adult or emancipated
     minor prior to death and not subsequently revoked that a person
     other than the one authorized by this section determine the
     final disposition of his remains.
        "Enduring estrangement."  A physical and emotional separation
     from the deceased at the time of death of the person authorized
     by this section to determine the final disposition of the
     decedent's remains, which has existed for a period of time that
     clearly demonstrates an absence of due affection, trust and
     regard for the deceased.
        "Next of kin."  The spouse and relatives by blood of the
     deceased in order that they be authorized to succeed to the
     deceased's estate under Chapter 21 (relating to intestate
     succession) as long as the person is an adult or an emancipated
     minor.
        Section 2.  This act shall take effect in 60 days.

     APPROVED--The 17th day of November, A. D. 1998.

     THOMAS J. RIDGE