Posted by Martin Heller Potempa & Sheppard, PLLC on October 13, 2015
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The Tennessee Court of Appeals recently reviewed an estate case concerning a dispute among the decedent’s family regarding the inscription on her headstone. In the case, In re Estate of Love, the decedent died intestate, without a will. She was survived by her husband, daughters, mother, and adoptive father. The decedent’s headstone selected by her husband included her biological father’s surname, and not the surname of her adoptive father. The decedent’s adoptive father filed a petition to change the inscription on the headstone to his surname, and the decedent’s surviving husband and daughters opposed the petition. The trial court denied the petition, and the matter was appealed.
Tennessee law provides that in the absence of directions or a prearranged funeral contract, the right to control the disposition of the decedent’s remains, the location, manner, and conditions of disposition, and the arrangements for any funeral goods and services are vested in the following order: (1) an attorney in fact designated in a durable power of attorney for health care pursuant to certain laws; (2) the surviving spouse; (3) the surviving child, or if there is more than one child, the majority of the surviving children; (4) the surviving parent; (5) the surviving sibling. T.C.A. § 62-5-703. The statute goes on to order the remaining survivors of the decedent.
The appellant, the decedent’s adoptive father, argued that the statute does not provide the decedent’s surviving spouse with the right to choose an inscription on the headstone because T.C.A. § 46–1–102 defines a headstone as a “commodity” and not as funeral goods and services. The Court of Appeals disagreed, holding that the provision cited by the appellant deals with the statutory regulation of cemeteries and is inapplicable in the current case, which involves the right of disposition and the right to make arrangements for funeral goods and services.
The court also held that, while T.C.A. § 62-5-703 does not specifically define the right of disposition to include any inscription of the decedent’s headstone, and although no prior case law has addressed the subject, the statutory language is sufficiently broad to include such a right. The court went on to conclude that the appellant’s proposed interpretation is too restrictive of legislative intent, and it would be illogical for the statute to leave open the question of control over the headstone inscription while attempting to promote certainty in the determination by granting control of the burial and disposition to enumerated survivors. Carving out an exception for the headstone inscription, therefore, would lead to a contrary result.
Lastly, the court did not agree with the appellant’s argument that the headstone as inscribed operates as an illegal change of the decedent’s name after death. The court noted that nicknames are frequently used on headstones, and headstones do not change the names of the decedents. In addition, the decedent had changed her name to the surname of her surviving husband when she was alive, demonstrating that the proposed inscription of the appellant would also not constitute a name change. Accordingly, the court affirmed the decision of the trial court.
A knowledgeable attorney can inform you as to potential issues that may arise in the disposition of your estate, as well as help prevent them. To discuss your estate planning needs with one of our experienced attorneys, contact the Nashville firm of Martin Heller Potempa & Sheppard. We handle a variety of cases, including probate litigation, personal injury claims, and family law matters. To schedule a consultation, call (615) 800-7096 or contact us online.
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