Burial Rights

Who has the right and/or obligation to bury a deceased person?

The family of the deceased has the duty to bury (or inter) as well as an obligation to pay the burial costs, unless there is a written pre-death directive or a prepaid funeral plan. This directive may be included in a will, and the funeral home is permitted to rely on such directive even though the will has not been admitted to probate. In the absence of a written directive, the surviving spouse has the responsibility and obligation to pay for burial costs. If there is no surviving spouse, the order of priority rests next with the adult children, parents, adult brothers and sisters, heirs at law, a guardian, the county of residence, one performing an inquest, and finally with anyone willing to assume responsibility and liability for the decedent’s remains and the costs of burial. When the decedent is indigent, it is necessary to notify the County Social Services Department within 24 hours of death. If this notice requirement is not timely met, the county will not pay any costs of the person’s burial.

Must I make specific provisions if I wish to donate my body or specific organs following my death?

The Texas Anatomical Gift Act permits anyone over the age of 18, or those under 18 with parental consent, to donate either his or her own body or specific organs. Donations can be shown on your driver’s license, in your will, or by another document. The donation agreement must be witnessed by two persons. If you want to make a specific-purpose gift to a certain organization, it is important that you check in advance to see if your donation will be accepted.

If I should die without making an anatomical gift, can one still be made?

The Texas Anatomical Gift Act does allow family members to donate a decedent’s body or other acceptable organs. This authority to donate rests first with the surviving spouse and then, in order of priority, with the adult children, parents, brothers and sisters, a guardian, or any other person authorized to dispose of the body.

If I desire to be cremated how should this directive be handled?

You may provide written directions for cremation or other disposition of your body by will, a prepaid funeral contract, or a written, signed and acknowledged instrument. You should then appoint a person as your agent to faithfully carry out your instructions. A form for such an appointment appears in chapter 711 of the Texas Health and Safety Code, available at your local law library.

Where can I obtain information describing burial services and costs?

State law requires funeral home operators to provide a list of retail prices for a person to keep, along with a brochure published by the state. Funeral home operators must also explain that a contract may not be signed before the retail price list is provided. You may also telephone a funeral home operator and be given general price information within a reasonable amount of time

Can I make funeral arrangements before I die?

Yes. You may make necessary burial arrangements before they are needed. Several methods are available to set aside the money needed to pay for these services. Many funeral homes provide pre-need burial programs. These programs may be established after the burial services have been selected and may be funded by insurance or annuity payments. The type of plan, as well as the services to be provided, can be selected at a less stressful time and with more consideration being paid to the cost and needs of the individual. The Banking Department of Texas has established a state fund to help protect your investment of pre-needed funeral expenses.

What type of death benefits are available to my survivors?

If you are a veteran of the military, both your surviving spouse and your children may be entitled to veterans benefits. Specific information can be obtained from your regional veterans affairs office. In addition to monetary benefits, the family of a veteran may also be entitled to a flag, burial in a national cemetery, transportation of the body to the cemetery, and a headstone or marker. Social security death benefits may also be available to a surviving spouse, a minor child if there is no surviving spouse, or a surviving parent if there is no surviving spouse or child eligible. Only the eligible person may make an application to the local social security office. The Texas legislature has provided benefits to its citizens under the Texas Criminal Victim’s Compensation Act. Specific applications must be completed in a timely manner when a criminal report has been made.