Assemblyman Dinowitz Passes Legislation to Allow Individuals to Determine the Disposition of Their Remains

Legislation also sets precedent by including domestic partnerships
June 28, 2005

Assemblyman Jeffrey Dinowitz passed major legislation that will create a written instrument that allows an individual, before he or she dies, to name a person who would carry out the decedentís expressed written wishes regarding the disposition of their remains. The legislation, authored by Assemblyman Dinowitz, was passed overwhelmingly by both the Assembly and Senate last Friday.

Assemblyman Dinowitz stated, "Fundamentally, this legislation is about giving individuals control over their bodies. It will allow the individual the make explicit his or her wishes regarding their remains after they die. It will also address the common dispute over who makes the decision to control the decedentís remains, reducing confusion at funeral homes, crematoriums, cemeteries, and eliminating family disputes."

Under current law, a will allows an individual to specify their wishes concerning disposition of property after death; a health care proxy allows an individual to specify someone who will make medical decisions in the event they become incapacitated; and a proxy can be used to instruct that an individualís body be donated to science. But there is no formal mechanism in New York to allow an individual to designate who will have the legal right and responsibility to control and carry out their burial wishes.

Assemblyman Dinowitz said, "I believe that having the ability to create a comprehensive end-of-life plan is a fundamental right every New Yorker should possess. This bill fills a gaping hole in that intensely personal matter, as New York is one of only eleven states that does not provide a mechanism to dispose of oneís remains. The bill upholds the fundamental right of ensuring that oneís end-of-life wishes are followed. The right to delegate or entrust the disposition of oneís remains to another is as significant as the right of burial itself."

Equally significant as the proxy form is that the legislation also creates a rank-order list of people who can make those burial decisions absent a written directive, beginning with a person who has been named as a designated agent in the written instrument. Next in line are the deceased personís surviving spouse or domestic partner, then surviving children 18 years of age or older, then surviving parents, then surviving siblings. The proxy is inexpensive and simple, making it accessible to the poor and user friendly for everyone, including our seniors.

Further, the tragic events of 9/11 painfully revealed how vital and necessary it is for New York to have such a formal mechanism that this bill establishes to ensure that one has the ability to create a comprehensive end-of-life plan. This bill defines and includes domestic partnership in the rank-order list. After 9/11, surviving domestic partners faced difficult challenges when they tried to claim rights to a lost loved oneís remains. They were often left powerless, even after spending decades with their domestic partner, having to allow parents or siblings, whom were sometimes estranged from their partner, to control the decedentís remains.

Assemblyman Dinowitz said, "This legislation recognizes the dignity of loving, committed relationships by including domestic partnerships in the rank-order list. The inclusion of this definition prevents anyone from disregarding the intended wishes of a loved one to dispose of the remains, upholding a fundamental right that all New Yorkers should possess. Any other determination that would be made against those wishes is tantamount to desecrating those remains. I urge the Governor to sign this legislation into law."

The legislation was strongly supported by Empire State Pride Agenda, Gay Menís Heath Crisis, AARP, Federation of Protestant Welfare Agencies, and State-Wide Senior Action Council.