BILL REQ. #:  S-3393.1 

Read first time 01/09/12.   Referred to Committee on Judiciary.

     AN ACT Relating to parental decision making regarding the disposition of remains upon the death of an adult child; and amending RCW 68.50.160.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 68.50.160 and 2011 c 265 s 2 are each amended to read as follows:
     (1) A person has the right to control the disposition of his or her own remains without the predeath or postdeath consent of another person. A valid written document expressing the decedent's wishes regarding the place or method of disposition of his or her remains, signed by the decedent in the presence of a witness, is sufficient legal authorization for the procedures to be accomplished.
     (2) Prearrangements that are prepaid, or filed with a licensed funeral establishment or cemetery authority, under RCW 18.39.280 through 18.39.345 and chapter 68.46 RCW are not subject to cancellation or substantial revision by survivors. Absent actual knowledge of contrary legal authorization under this section, a licensed funeral establishment or cemetery authority shall not be held criminally nor civilly liable for acting upon such prearrangements.
     (3) If the decedent has not made a prearrangement as set forth in subsection (2) of this section or the costs of executing the decedent's wishes regarding the disposition of the decedent's remains exceeds a reasonable amount or directions have not been given by the decedent, the right to control the disposition of the remains of a deceased person vests in, and the duty of disposition and the liability for the reasonable cost of preparation, care, and disposition of such remains devolves upon the following in the order named:
     (a) The designated agent of the decedent as directed through a written document signed and dated by the decedent in the presence of a witness. The direction of the designated agent is sufficient to direct the type, place, and method of disposition((.));
     (b) The surviving spouse or state registered domestic partner((.));
     (c) The majority of the surviving adult children of the decedent((.));
     (d) The surviving parents of the decedent((.)), except as provided in subsection (4) of this section when a child dies after reaching the age of majority;
     (e) The majority of the surviving siblings of the decedent((.));
     (f) A court-appointed guardian for the person at the time of the person's death.
     (4) A parent's right to control the disposition of remains of the parent's child who dies after reaching the age of majority is governed by this subsection.
     (a) A parent has the right to exercise sole decision-making authority to direct the type, place, and method of disposition under the following circumstances:
     (i) At the time of death:
     (A) There was a valid court order in force restricting or precluding the other parent's contact with the adult child;
     (B) There was a request pending with a court of competent jurisdiction for a protective order filed by or on behalf of the adult child against the other parent;
     (C) The other parent was awaiting sentencing, confined, or on probation for an assault or other injury to the child, regardless of when the assault or injury occurred; or
     (D) The other parent owed, on behalf of the child, two thousand dollars or more in past due child support under a valid order of support or under a judgment for past due support, including any interests and other costs and fees granted under the judgment, and the parent continues to owe two thousand dollars or more;
     (ii) At the time the child reached the age of majority, there was a court order in force that:
     (A) Restricted or precluded entirely the other parent's contact with the child under the provisions of RCW 26.09.191, or under substantially similar provisions in the laws of another jurisdiction; or
     (B) Granted sole decision-making authority for religious upbringing or for all matters to the parent seeking to exercise authority regarding the disposition of remains; or
     (iii) For fifteen or more years during the child's minority:
     (A) The parent seeking to exercise authority regarding the disposition of remains was the legal custodian of the child;
     (B) There was no court order granting the other parent residential time or other contact with the child and the other parent never filed a petition with the court seeking residential time or other contact with the child; and
     (C) There was no order of child support in force on behalf of the child requiring the other parent to support the child or the other parent failed to pay child support that was due under a court order.
     (b) For the purposes of this subsection (4), "court order" means any valid order issued by a court of competent jurisdiction, including an order entered by agreement of the parties or by default. Proof of the existence of such a court order may be made by providing the cemetery authority or funeral establishment with a certified copy of the order.
     (c) A parent seeking to exercise authority under this subsection (4) based on the absence of a court order or on a child support arrearage must affirm in writing the circumstances supporting the parent's exercise of authority.
     (d) This subsection (4) does not prohibit the parents of a child who dies after reaching the age of majority from voluntarily cooperating in the decision making regarding the disposition of the child's remains under subsection (3)(d) of this section.
     (5) If any person to whom the right of control has vested pursuant to subsection (3) of this section has been arrested or charged with first or second degree murder or first degree manslaughter in connection with the decedent's death, the right of control is relinquished and passed on in accordance with subsection (3) of this section.
     (((5) If)) (6) A cemetery authority as defined in RCW 68.04.190 or a funeral establishment licensed under chapter 18.39 RCW may not be held criminally or civilly liable for burying or cremating the human remains when:
     (a) The cemetery authority or funeral establishment has made a good faith effort to locate the person cited in subsection (3)(a) through (f) of this section or the legal representative of the decedent's estate((, the));
     (b) The cemetery authority or funeral establishment relies on documentation provided under subsection (4)(b) or (c) of this section; or
     (c) Any government agency or charitable organization provides the funds for the disposition of any human remains. A cemetery authority or funeral establishment shall have the right to rely on an authority to bury or cremate the human remains, executed by the most responsible party available((, and the cemetery authority or funeral establishment may not be held criminally or civilly liable for burying or cremating the human remains. In the event any government agency or charitable organization provides the funds for the disposition of any human remains, the cemetery authority or funeral establishment may not be held criminally or civilly liable for cremating the human remains)) and supported by any documentation provided under subsection (4)(b) or (c) of this section.
     (((6))) (7) The liability for the reasonable cost of preparation, care, and disposition devolves jointly and severally upon all kin of the decedent in the same degree of kindred, in the order listed in subsection (3) of this section, and upon the estate of the decedent.