BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 905 (Pan)
As Amended June 9, 2011
Hearing Date: June 21, 2011
Fiscal: Yes
Urgency: No
TW
SUBJECT
Disposition of Remains: Authorized Agent
DESCRIPTION
This bill would add to the list of persons authorized to take
control of a decedent's remains the person authorized to direct
disposition (PADD) indicated on a United States Department of
Defense Record of Emergency Data, DD Form 93 (DD Form 93). This
bill would be operative only if the DD Form 93 and corresponding
federal law are amended to allow the PADD to be any person,
regardless of the relationship of the PADD to the decedent.
BACKGROUND
A PADD is required to be designated by a military service member
prior to deployment. California law currently does not
recognize a PADD as an individual who may take possession of a
decedent's remains. Consequently, a service member may
designate a family member on the DD Form 93, but California law
would designate, under the ranked list of individuals who may
take possession of remains, the service member's estranged
spouse. This bill would clarify this confusion and recognize
that a PADD would be the first individual who could take
possession of a service member's remains.
The current DD Form 93 does not allow for the designation of a
domestic partner or same-sex spouse. Accordingly, this bill was
amended to provide that, if at some point the PADD and
corresponding federal law authorize the designation of a
domestic partner or same-sex spouse, then the individual
designated on the DD Form 93 will become the first person who
(more)
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could take possession of the service member's remains.
This bill is similar to AB 2190 (Block, 2010), which was held in
this committee because it raised concerns that it might have
inadvertently undermined protections for domestic partners and
same-sex couples under California law. California law
recognizes spouses to include domestic partners and same-sex
spouses, but federal law does not. Accordingly, the DD Form 93
currently does not allow a service member to designate his or
her domestic partner or same-sex spouse as the PADD. This bill,
on the other hand, would require, prior to enactment of this
bill, the DD Form 93 and corresponding federal law to allow the
designation of any person, regardless of the relationship to the
service member, who would include a domestic partner or same-sex
spouse.
This bill, sponsored by the Veterans of Foreign Wars, would add
to the list of persons authorized to take control of a
decedent's remains the PADD indicated on a DD Form 93. This
bill would be operative only if the DD Form 93 and corresponding
federal law are amended to allow the PADD to be any person,
regardless of the relationship of the PADD to the decedent.
CHANGES TO EXISTING LAW
Existing federal law requires a military service member to
appoint a PADD annually and prior to deployment. (P.L.
109-163.)
Existing federal law provides that only the following persons
may be appointed as a PADD:
the surviving spouse of the decedent;
blood relatives of the decedent;
adoptive relatives of the decedent; or
if none of the above persons can be found, a person standing in
place of a parent of the decedent. (10 U.S.C. Sec. 1482(c).)
Existing state law provides that, unless other directions have
been made by a decedent in writing such as a will, the right to
control the disposition of the remains of the decedent, the
location and conditions of interment, and arrangements for
funeral goods and services to be provided, 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:
an agent under a power of attorney for health care who has the
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right and duty of disposition, as specified;
the competent surviving spouse;
the sole surviving competent adult child or children, as
specified, of the decedent;
the surviving competent parent or parents of the decedent, as
specified;
the sole surviving competent adult sibling(s) of the decedent, as
specified;
the surviving competent adult person or persons respectively in
the next degrees of kinship, as specified;
the public administrator when the deceased has sufficient assets.
(Health & Saf. Code Sec. 7100.)
This bill would provide that the PADD would be the first person,
over and above anyone designated as the decedent's agent under a
power of attorney for health care, who has the right and duty of
disposition of remains for a military service member who dies
while on duty.
This bill would only become operative in the event the DD Form
93 and existing federal law are modified to authorize a service
member to designate anyone as the PADD.
COMMENT
1. Stated need for the bill
The author writes:
Presently, the DD Form 93 is not recognized in state law
leading to potential conflict whenever a California resident
is killed while on duty. The US Department of Defense (or a
qualified Funeral Director) normally will only release remains
to the person designated on the form - that person may not be
the agent who has the right and duty of disposition for a
decedent under state law. This could lead to painful legal
disputes between friends and family members of the decedent.
�AB 905] makes the federal record of emergency data, DD Form
93, take first priority and be used for disposition of remains
when a member of the US military is killed while on duty.
Specifically, the bill would make the . . . PADD on the DD
Form 93 the legal agent who has the right and duty of
disposition for a decedent.
The Veterans of Foreign Wars, the sponsor of this bill, writes:
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The PADD is of special significance to members of the military
services because, in the event of the member's death, the
Department of Defense is required to contact the designated
person in order to provide the burial entitlements that
deceased service members are supposed to receive pursuant to
10 U.S.C. 1482(a). The DD Form 93 is routinely updated by
members of the military services on an annual basis, prior to
any deployment, and at any other time the service member may
desire. As such, it is the most recent evidence of the
member's personal wishes.
2. Removing conflict over disposition of remains
This bill would recognize the PADD designated on a service
member's DD Form 93 as the person authorized to take control of
the service member's remains in the event the service member
dies while on active duty. State law does not currently
recognize the PADD designation under the list of individuals
authorized to take control of a decedent's remains.
The Office of the Deputy Assistant Secretary of Defense, neutral
on this bill, writes:
AB 905 will ensure that the DD Form 93 is consulted and viewed
as the legally sufficient document for designating a PADD. . .
. Coroners will be able to refer confidently to a single
document to approach the Service member's choice for directing
the disposition of his or her remains. . . . In addition,
having DD Form 93 in statute will make estate planners aware
of its important use by the federal government. If they were
to help a Service member create a durable power of attorney or
a will, they could align both the DD Form 93 and their
paperwork so that there are no conflicts, thus better serving
their client.
The author argues that this bill would eliminate conflicts that
arise when a service member has designated an individual on the
DD Form 93 who is not listed as someone who can take possession
of the service member's remains under California law.
Currently, conflicts arise when a service member is killed in
action and the remains are turned over either by the Department
of Defense (DOD) or by a funeral director to the person listed
on the PADD. The PADD may be the service member's mother, but
under California law, an estranged spouse would be the first
person authorized to take control over the remains. In this
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scenario, there must be a determination as to which person
should take control and disposition of the remains.
Litigation may ensue if the PADD does not name a person listed
under California law as someone authorized to take control of
the remains. As discussed further under Comment 3, California
recognizes domestic partners and same-sex spouses under the list
of persons authorized to take control over a decedent's remains.
However, federal law does not authorize the service member to
designate a domestic partner or same sex spouse as the PADD.
This bill would add the PADD, as first in priority, to the list
of persons authorized to take control and disposition of
remains, which would remove potential conflicts between the PADD
and California law.
3. Providing for a same-sex spouse or domestic partner of the
service member
This bill would delay the operation of this bill to such time as
the DD Form 93 and federal law are amended to allow a service
member to designate anyone as the PADD. Existing federal law
only allows a service member to designate a surviving spouse,
blood or adoptive relatives, or a person acting in loco parentis
as the PADD. (10 U.S.C. 1482(c).) Federal law defines a spouse
as "a person of the opposite sex who is a husband or a wife." (1
U.S.C. Sec. 7.)
However, California law affords domestic partners, two
individuals who are of the same sex and residing together, the
same rights and protection as spouses. (Fam. Code Sec. 297 et
seq.) Further, there are approximately 18,000 same-sex
marriages in California that are recognized in accordance with
In re Marriage Cases (2008) 43 Cal.4th 757. Although
Proposition 8 (2008) was approved by voters to limit the
validity of marriages to only those between two members of the
opposite sex, the constitutionality of Proposition 8 was
challenged and this issue is still being litigated. (See Perry
v. Brown 2011 U.S. App. LEXIS 7311 (9th Cir. Cal. 2011).)
Accordingly, the domestic partners and same-sex spouses of
California service members are authorized under California law
to take control of a deceased service member's remains.
However, because federal law does not recognize domestic
partners and same-sex spouses in the definition of "spouse," the
service member would have to indicate on the DD Form 93 a parent
or relative as the PADD. Such designation of a relative or
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parent as the PADD would conflict with the hierarchy of a spouse
under California law as first in line to take control over the
deceased service member's remains and, without the delayed
operative date provided under this bill, would arguably
inadvertently undermine California law.
Federal legislation, the Honor the WISH Act, was introduced on
March 11, 2011 to revise the DD Form 93 to allow a service
member to designate anyone as the PADD. (U.S. 112th Congr.
(2011-2012) H.R. 1046.IH.) However, until the service member
may legally designate any individual, including a domestic
partner or same-sex spouse, as the PADD, the California
hierarchy regarding the control and disposition of a decedent's
remains must remain in place to protect the wishes of the
deceased service member. For this reason, this bill has a
delayed operative date until such time as federal law and the DD
Form 93 allow the designation of any person as the PADD.
Support : California State Commanders Veterans Council; Civil
Justice Association of California; Equality California
Opposition : None Known
HISTORY
Source : Veterans of Foreign Wars
Related Pending Legislation : SB 647 (Committee on Judiciary),
among other things, would add conservators of the person or
estate to the list of individuals with the right to control and
duty of disposition of remains. SB 647 is in the Assembly
Judiciary Committee and is scheduled to be heard on June 21,
2011.
Prior Legislation : AB 2190 (Block, 2010) See Background.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
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Assembly Veterans Affairs Committee (Ayes 8, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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