Indiana Code 23-14-31-26. Priority among persons having right to serve as authorizing agent; persons who may not serve; disputes
(1) A person:
Terms Used In Indiana Code 23-14-31-26
- Attorney: includes a counselor or other person authorized to appear and represent a party in an action or special proceeding. See Indiana Code 1-1-4-5
- authorizing agent: means a person legally entitled to order the cremation and final disposition of specific human remains. See Indiana Code 23-14-31-2
- body part: means :
Indiana Code 23-14-31-4
- cremation: means the incineration of the body of a deceased person or a body part of a nondeceased person and the mechanical or manual reduction of identifiable bone fragments to unidentifiable bone fragments. See Indiana Code 23-14-31-8
- crematory: means a building or structure, including a holding facility where human remains are or are intended to be cremated. See Indiana Code 23-14-31-11
- crematory authority: means the legal entity or the entity's authorized representative that is registered by the board to operate a crematory and to perform cremations. See Indiana Code 23-14-31-12
- Decedent: A deceased person.
- disposition: means the cremation or other disposition of a dead human body or a part of a dead human body. See Indiana Code 23-14-31-13
- funeral home: means a place that is licensed under IC 25-15 where:
Indiana Code 23-14-31-14
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- in writing: include printing, lithographing, or other mode of representing words and letters. See Indiana Code 1-1-4-5
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Probate: Proving a will
- Trustee: A person or institution holding and administering property in trust.
- United States: includes the District of Columbia and the commonwealths, possessions, states in free association with the United States, and the territories. See Indiana Code 1-1-4-5
(B) named in a United States Department of Defense form “Record of Emergency Data” (DD Form 93) or a successor form adopted by the United States Department of Defense, if the decedent died while serving in any branch of the United States Armed Forces (as defined in 10 U.S.C. § 1481) and completed the form.
(2) An individual specifically granted the authority to serve in a power of attorney or a health care power of attorney executed by the decedent under IC 30-5-5-16 or a health care representative under IC 16-36-7.
(3) The individual who was the spouse of the decedent at the time of the decedent’s death, except when:
(A) a petition to dissolve the marriage or for legal separation of the decedent and spouse is pending with a court at the time of the decedent’s death, unless a court finds that the decedent and spouse were reconciled before the decedent’s death; or
(B) a court determines the decedent and spouse were physically and emotionally separated at the time of death and the separation was for an extended time that clearly demonstrates an absence of due affection, trust, and regard for the decedent.
(4) The decedent’s surviving adult child or, if more than one (1) adult child is surviving, the majority of the adult children. However, less than half of the surviving adult children have the rights under this subdivision if the adult children have used reasonable efforts to notify the other surviving adult children of their intentions and are not aware of any opposition to the final disposition instructions by more than half of the surviving adult children.
(5) The decedent’s surviving parent or parents. If one (1) of the parents is absent, the parent who is present has authority under this subdivision if the parent who is present has used reasonable efforts to notify the absent parent.
(6) The decedent’s surviving sibling or, if more than one (1) sibling is surviving, the majority of the surviving siblings. However, less than half of the surviving siblings have the rights under this subdivision if the siblings have used reasonable efforts to notify the other surviving siblings of their intentions and are not aware of any opposition to the final disposition instructions by more than half of the surviving siblings.
(7) A guardian appointed by a court under IC 29-3-5-3.
(8) The individual in the next degree of kinship under IC 29-1-2-1 to inherit the estate of the decedent or, if more than one (1) individual of the same degree is surviving, the majority of those who are of the same degree. However, less than half of the individuals who are of the same degree of kinship have the rights under this subdivision if they have used reasonable efforts to notify the other individuals who are of the same degree of kinship of their intentions and are not aware of any opposition to the final disposition instructions by more than half of the individuals who are of the same degree of kinship.
(9) If none of the persons described in subdivisions (1) through (8) are available, or willing, to act and arrange for the final disposition of the decedent’s remains, a stepchild (as defined in IC 6-4.1-1-3(f)) of the decedent. If more than one (1) stepchild survives the decedent, then a majority of the surviving stepchildren. However, less than half of the surviving stepchildren have the rights under this subdivision if they have used reasonable efforts to notify the other stepchildren of their intentions and are not aware of any opposition to the final disposition instructions by more than half of the stepchildren.
(10) The person appointed to administer the decedent’s estate under IC 29-1.
(11) If none of the persons described in subdivisions (1) through (10) are available, any other person willing to act and arrange for the final disposition of the decedent’s remains, including a funeral home that:
(A) has a valid prepaid funeral plan executed under IC 30-2-13 that makes arrangements for the disposition of the decedent’s remains; and
(B) attests in writing that a good faith effort has been made to contact any living individuals described in subdivisions (1) through (10).
(12) In the case of an indigent or other individual whose final disposition is the responsibility of the state or township, the following may serve as the authorizing agent:
(A) If none of the persons identified in subdivisions (1) through (11) are available:
(i) a public administrator, including a responsible township trustee or the trustee’s designee; or
(ii) the coroner.
(B) A state appointed guardian.
However, an indigent decedent may not be cremated if a surviving family member objects to the cremation or if cremation would be contrary to the religious practices of the deceased individual as expressed by the individual or the individual’s family.
(13) In the absence of any person under subdivisions (1) through (12), any person willing to assume the responsibility as the authorizing agent, as specified in this article.
(b) When a body part of a nondeceased individual is to be cremated, a representative of the institution that has arranged with the crematory authority to cremate the body part may serve as the authorizing agent.
(c) If:
(1) the death of the decedent appears to have been the result of:
(A) murder (IC 35-42-1-1);
(B) voluntary manslaughter (IC 35-42-1-3); or
(C) another criminal act, if the death does not result from the operation of a vehicle; and
(2) the coroner, in consultation with the law enforcement agency investigating the death of the decedent, determines that there is a reasonable suspicion that a person described in subsection (a) committed the offense;
the person referred to in subdivision (2) may not serve as the authorizing agent.
(d) The coroner, in consultation with the law enforcement agency investigating the death of the decedent, shall inform the crematory authority of the determination referred to in subsection (c)(2).
(e) If a person vested with a right under subsection (a) does not exercise that right not later than seventy-two (72) hours after the person receives notification of the death of the decedent, the person forfeits the person’s right to determine the final disposition of the decedent’s remains, and the right to determine final disposition passes to the next person described in subsection (a).
(f) A crematory authority owner has the right to rely, in good faith, on the representations of a person listed in subsection (a) that any other individuals of the same degree of kinship have been notified of the final disposition instructions.
(g) If there is a dispute concerning the disposition of a decedent’s remains, a crematory authority is not liable for refusing to accept the remains of the decedent until the crematory authority receives:
(1) a court order; or
(2) a written agreement signed by the disputing parties;
that determines the final disposition of the decedent’s remains. If a crematory authority agrees to shelter the remains of the decedent while the parties are in dispute, the crematory authority may collect any applicable fees for storing the remains, including legal fees that are incurred.
(h) Any cause of action filed under this section must be filed in the probate court in the county where the decedent resided, unless the decedent was not a resident of Indiana.
(i) A spouse seeking a judicial determination under subsection (a)(3)(A) that the decedent and spouse were reconciled before the decedent’s death may petition the court having jurisdiction over the dissolution or separation proceeding to make this determination by filing the petition under the same cause number as the dissolution or separation proceeding. A spouse who files a petition under this subsection is not required to pay a filing fee.
As added by P.L.231-1995, SEC.2. Amended by P.L.102-2007, SEC.1; P.L.143-2009, SEC.5; P.L.101-2010, SEC.1; P.L.34-2011, SEC.1; P.L.6-2012, SEC.161; P.L.190-2016, SEC.32; P.L.26-2021, SEC.1; P.L.50-2021, SEC.65; P.L.137-2021, SEC.28.