In Delaware, you may name the person who will carry out your funeral arrangements. You can also provide detailed instructions about your final wishes and set aside funds to cover your funeral expenses, including the costs of burial or cremation.
Who Has the Right to Make Funeral Arrangements in Delaware?
Delaware law determines who can make decisions about funerals and body disposition -- that is, burial or cremation -- after someone dies. This right and responsibility goes to the following people, in order:
- you, if you make a written declaration before your death
- your surviving spouse, unless you are legally separated
- the personal representative or administrator of your estate, if one has been appointed
- your adult child, or a majority of your children if you have more than one
- your parents
- your siblings
- your next of kin
- any person willing to take on the responsibility, or
- a person appointed by the probate court.
Making a declaration form. To make a valid document appointing someone to carry out your final wishes, you must write down what you want, then sign and date your document. You may sign your declaration in front of a notary public, but it’s not legally necessary to do so. (Delaware Code, Title 12, Ch. 2, § 266.)
You can find Delaware’s official “Declaration of Disposition of Last Remains” form in Delaware Code, Title 12, Ch.2, § 265. You can also make up your own form, as long as the language you use is substantially the same as the statutory form.
If you are in the military. You may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who Pays for Funeral Costs in Delaware?
The most recent statistics from the National Funeral Directors Association put the average cost of a funeral at more than $7,000. This figure doesn’t cover many common expenses such as cemetery costs, markers, flowers, or obituaries. For many people, after a house and a car, funeral goods and services are the most expensive thing they’ll ever buy. It’s wise to make a plan to pay for these costs.
You have two basic options for covering your funeral expenses, including the costs of burial or cremation. You can:
- pay in advance, or
- leave enough money for your survivors to pay the bills.
If you don’t do either of these things, your survivors must cover the costs of your funeral arrangements.
Paying in advance. If you want to pay for your funeral arrangements ahead of time, make sure you’re dealing with a reputable funeral establishment and clearly document any plans you make, so your survivors can easily carry them out. Though the law requires providers of funeral goods and services to carefully manage your funds (see Delaware Code, Title 5, Ch. 34), abuses do happen. What’s more, if a funeral establishment goes out of business, your careful planning may be lost.
For more information, see The Prepaid Funeral and Its Perils.
Setting aside funds. The safest and easiest way to cover the costs of your final arrangements is to estimate costs and tuck away the funds in an easily accessible, interest-earning bank account. You can designate a beneficiary who can claim the funds immediately after your death. Make sure the beneficiary understands what the money is for, however, and that you trust him or her completely, because the beneficiary is under no legal obligation to use the funds for your final arrangements.
For more information about setting up an account to cover the costs of your final arrangements, see Payable-on-Death (POD) Accounts: The Basics.
Writing Down Your Funeral Plans
Beyond simply naming a representative to carry out your final plans, letting your survivors know what kind of funeral arrangements you want -- including your wishes for ceremonies and whether you want to be buried or cremated -- will save them the difficulty of making these decisions during an emotional and stressful time. You can include your detailed final wishes with the written declaration that names your representative.
The official Delaware declaration form states that those who are responsible for carrying out your final wishes need do so only if they are “reasonable under the circumstances.” Factors to be considered may include:
- any known prepaid funeral, burial, or cremation plan
- the size of your estate
- your cultural or family customs
- your religious or spiritual beliefs
- whether there are creditors awaiting payment from your estate, and
- your financial situation prior to death.
If you feel that any of your wishes may be seen as “unreasonable” by family members, you should be very clear that you want your instructions carried out even if they appear to conflict with family customs or beliefs.
Nolo offers several tools to help you document your wishes for final arrangements. Each one walks you step-by-step through the process, so you won’t miss any important issues.
- Quicken WillMaker Plus can create a final arrangements document for you. The software program asks you questions about your wishes and then produces a detailed document you can give to others.
- Get It Together: Organize Your Records So Your Family Won't Have To, by Melanie Cullen with Shae Irving, is a workbook that provides a complete system for documenting information for your executor and family members, including your wishes for final arrangements.
- Nolo’s Final Arrangements Kit includes all the basic forms and instructions you need to document your final wishes.
Where to Store Your Funeral Plans
While there are many ways to write down your wishes for final arrangements and make them clear, here’s a firm piece of advice to follow: Don’t put them in your will. Your will may not be read until weeks after your death -- far too late to help your survivors. It’s better to prepare a separate document.
Store your final arrangements paperwork in a safe place and be sure your loved ones know where to look when the time comes. It may be helpful to make copies and tell them where to find the originals when they’re needed. If you do so, be sure to keep a list of everyone with copies, in case you need to get them back and change them later.
To find the rules covering funeral arrangements, including consumer protection information, visit the website of theFuneral Consumers Alliance of Maryland and Environs, which covers Delaware as well as Maryland and the District of Columbia.
To learn more about making your final arrangements, see Getting Your Affairs in Order on Nolo.com.
For details on the rules that control disposing of remains in Delaware, see Burial and Cremation Laws in Delaware.