BILL NUMBER: SB 1360 CHAPTERED
BILL TEXT
CHAPTER 253
FILED WITH SECRETARY OF STATE AUGUST 4, 1998
APPROVED BY GOVERNOR AUGUST 3, 1998
PASSED THE SENATE JULY 21, 1998
PASSED THE ASSEMBLY JULY 16, 1998
AMENDED IN ASSEMBLY JULY 2, 1998
AMENDED IN ASSEMBLY JUNE 10, 1998
AMENDED IN SENATE APRIL 21, 1998
AMENDED IN SENATE APRIL 1, 1998
AMENDED IN SENATE FEBRUARY 10, 1998
INTRODUCED BY Senators Alpert, Peace, Solis, and Watson
(Coauthors: Assembly Members Alquist, Davis, Havice, Kuehl,
Leach, Murray, Pacheco, Thomson, and Wayne)
JANUARY 5, 1998
An act to amend Sections 7100 and 7100.1 of the Health and Safety
Code, and to amend Section 7600.6 of the Probate Code, relating to
human remains.
LEGISLATIVE COUNSEL'S DIGEST
SB 1360, Alpert. Human remains: disposition.
Existing law lists the person or persons who may, in a specified
order of succession, control the disposition of the remains of a
deceased person if other directions have not been given by the
decedent.
This bill would provide that if the person to whom right of
control has vested under those provisions has been charged with first
or second degree murder or voluntary manslaughter in connection with
the decedent's death, the right of control over the disposition of
the remains of the deceased person is relinquished and passed on to
the next of kin in accordance with those provisions. The bill would
also add to and revise the list of persons who may control the
disposition of the remains of a deceased person pursuant to these
provisions.
Existing law requires a funeral director or cemetery authority in
control of the decedent's remains to notify the public administrator
if certain persons with the right to control the disposition of the
remains cannot be found after reasonable inquiry or cannot be
contacted by reasonable means.
This bill would delete the reference to the cemetery authority
with regard to this notice requirement.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7100 of the Health and Safety Code is amended
to read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves upon, the
following in the order named:
(1) An attorney-in-fact under a durable power of attorney for
health care executed pursuant to Chapter 1 (commencing with Section
4600) of Part 4 of Division 4.5 of the Probate Code.
(2) The surviving spouse.
(3) The sole surviving adult child of the decedent, or if there is
more than one adult child of the decedent, one-half or more of the
surviving adult children. However, less than one-half of the
surviving adult children shall be vested with the rights and duties
of this section if they have used reasonable efforts to notify all
other surviving adult children of their instructions and are not
aware of any opposition to those instructions on the part of more
than one-half of all surviving adult children. For purposes of this
section, "adult child" means a competent natural or adopted child of
the decedent who has attained 18 years of age.
(4) The surviving parent or parents of the decedent. If one of
the surviving parents is absent, the remaining parent shall be vested
with the rights and duties of this section after reasonable efforts
have been unsuccessful in locating the absent surviving parent.
(5) The surviving competent adult person or persons respectively
in the next degrees of kindred. If there is more than one surviving
person of the same degree of kindred, the majority of those persons.
Less than the majority of surviving persons of the same degree of
kindred shall be vested with the rights and duties of this section if
those persons have used reasonable efforts to notify all other
surviving persons of the same degree of kindred of their instructions
and are not aware of any opposition to those instructions on the
part of one-half or more of all surviving persons of the same degree
of kindred.
(6) The public administrator when the deceased has sufficient
assets.
(b) (1) If any person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first or second
degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (6),
inclusive, of subdivision (a) can be found after reasonable inquiry,
or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by
hand, U.S. mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kindred and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of paragraph (5) of subdivision (a), "competent
adult" means an adult who has not been declared incompetent by a
court of law or who has been declared competent by a court of law
following a declaration of incompetence.
SEC. 2. Section 7100.1 of the Health and Safety Code is amended to
read:
7100.1. (a) A decedent, prior to death, may direct, in writing,
the disposition of his or her remains and specify funeral goods and
services to be provided. Unless there is a statement to the contrary
that is signed and dated by the decedent, the directions may not be
altered, changed, or otherwise amended in any material way, except as
may be required by law, and shall be faithfully carried out upon his
or her death, provided both of the following requirements are met:
(1) the directions set forth clearly and completely the final wishes
of the decedent in sufficient detail so as to preclude any material
ambiguity with regard to the instructions; and, (2) arrangements for
payment through trusts, insurance, commitments by others, or any
other effective and binding means, have been made, so as to preclude
the payment of any funds by the survivor or survivors of the deceased
that might otherwise retain the right to control the disposition.
(b) In the event arrangements for only one of either the cost of
interment or the cost of the funeral goods and services are made
pursuant to this section, the remaining wishes of the decedent shall
be carried out only to the extent that the decedent has sufficient
assets to do so, unless the person or persons that otherwise have the
right to control the disposition and arrange for funeral goods and
services agree to assume the cost. All other provisions of the
directions shall be carried out.
(c) If the directions are contained in a will, they shall be
immediately carried out, regardless of the validity of the will in
other respects or of the fact that the will may not be offered for or
admitted to probate until a later date.
SEC. 3. Section 7600.6 of the Probate Code is amended to read:
7600.6. A funeral director in control of the decedent's remains
pursuant to subdivision (c) of Section 7100 of the Health and Safety
Code shall notify the public administrator if none of the persons
described in paragraphs (2) to (6), inclusive, of subdivision (a) of
Section 7100 of the Health and Safety Code exist, can be found after
reasonable inquiry, or can be contacted by reasonable means.