Rights of Family Members, Other Interested Persons, Funeral Directors, and Operators of Disposition Facilities

V.S.A. tit. 18, ch. 107, subch. 3

in effect

18 V.S.A. § 5226 Definitions

5226. Definitions As used in this subchapter: (1) “Estranged” means a physical and emotional separation from the decedent at the time of death, which has existed for a period of time that demonstrates an absence of affection, trust, and regard for the decedent. (2) “Near relative” means the individuals listed in subdivisions 5227(a)(2) through (5) of this title. (3) “Right to disposition” means the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services. Added 2007, No. 56, § 1; amended 2023, No. 85 (Adj. Sess.), § 57, eff. July 1, 2024.

18 V.S.A. § 5227 Right to disposition

5227. Right to disposition (a) If there is no written directive of the decedent, in the following order of priority, one or more competent adults shall have the right to determine the disposition of the remains of a decedent, including the location, manner, and conditions of disposition and arrangements for funeral goods and services: (1) an individual appointed to arrange for the disposition of decedent’s remains pursuant to chapter 231 (advance directives) of this title; (2) a surviving spouse of the decedent; (3) a sole surviving child of the decedent or a majority of the surviving children, except as provided for in subdivision (b)(1) of this section, provided that if the child is a minor, his or her interest may only be effected by a legal guardian appointed by the Probate Division of the Superior Court; (4) in the case of a minor or a disabled adult, the custodial parent or the parent who had been providing the primary physical care of the decedent or, if not applicable, a sole surviving parent, or both parents, of the decedent, or either parent as provided for in subdivision (b)(2) of this section; (5) a sole surviving sibling of the decedent or a majority of the surviving siblings, except as provided for in subdivision (b)(3) of this section; (6) any other family member, in descending order of kinship under the laws of descent and distribution, except that if there is more than one family member of the same degree of relation, a majority of family members of that degree, except as provided in subdivision (b)(4) of this section, may exercise the right of disposition; (7) a guardian of the decedent at the time of death; (8) any other individual willing to assume the responsibilities to act and arrange the final disposition of the decedent’s remains, including the representative of the decedent’s estate, after attesting in writing that a good faith but unsuccessful effort has been made to contact the individuals described in subdivisions (1) through (7) of this subsection or that those individuals have waived any interest in exercising their rights under this subchapter; (9) the funeral director or disposition facility operator with custody of the body, after attesting in writing that a good faith effort has been made to contact the individuals described in subdivisions (1) through (8) of this subsection; or (10) the Office of the Chief Medical Examiner when it has jurisdiction and custody of the body, after attesting in writing that a good faith effort has been made to contact the individuals described in subdivisions (1) through (8) of this subsection. (b)(1) If there is more than one surviving child of the decedent and a majority of the children is unable to be contacted, less than a majority of the surviving children may make the decisions if they have made prompt, reasonable efforts to contact all other surviving children and prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions. (2) If one parent is unable to be contacted, the remaining parent may make the decisions if that parent has made prompt, reasonable efforts to contact the other parent and is not aware of any opposition by the other parent to those decisions. (3) If there is more than one surviving sibling of the decedent and a majority of the siblings is unable to be contacted, less than a majority of the surviving siblings may make the decisions if they have made prompt, reasonable efforts to contact all other surviving siblings and prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions. (4) If there is more than one family member in the highest applicable order of kinship under the laws of descent and distribution and a majority of these family members is unable to be contacted, less than a majority of the surviving family members in this order may make the decisions if they have made prompt, reasonable efforts to contact all other surviving family members in this order and prompt efforts to notify them of the proposed decisions, and do not know of any opposition to those decisions. (c)(1) If the disposition of the remains of a decedent is determined under subdivision (a)(9) of this section and the funeral director or disposition facility operator has cremated or processed the remains, as applicable, the funeral director or disposition facility operator shall retain the remains for three years and, if no interested party as provided in subdivisions (a)(1) through (8) of this section claims the decedent’s remains after three years, the funeral director or disposition facility operator shall arrange for the permanent disposition of the remains consistent with any applicable law and standard funeral practices. (2) Notwithstanding any provision of subdivision (1) of this subsection to the contrary, a funeral director or disposition facility operator may determine that the unclaimed remains of a deceased veteran shall be interred at the Vermont Veterans Memorial Cemetery pursuant to 20 V.S.A. § 1586 if: (A) at least 180 days have passed since the funeral director or disposition facility operator cremated or processed the remains; (B) the funeral director or disposition facility operator either: (i) has actual knowledge that there is no interested party as provided in subdivisions (a)(1) through (8) of this section to claim the decedent’s remains; or (ii) after making reasonable efforts, has been unable to locate and contact any known interested party as provided in subdivisions (a)(1) through (8) of this section; and (C) the funeral director or disposition facility operator has confirmed with the Office of Veterans Affairs that the deceased veteran is eligible to be interred at the Vermont Veterans Memorial Cemetery. (d)(1) If the disposition of the remains of a decedent is determined under subdivision (a)(10) of this section, the Office of the Chief Medical Examiner may contract with a funeral director or disposition facility operator to cremate the remains of the decedent. (2)(A) If the cremation of the decedent is arranged and paid for under 33 V.S.A. § 2301, the Department for Children and Families shall pay the cremation expenses to the funeral home, up to the maximum payment permitted by rule by the Department for Children and Families. (B) If the cremation of the decedent is not arranged and paid for under 33 V.S.A. § 2301, the Department of Health shall pay the cremation expenses to the funeral home, up to the maximum payment permitted by rule by the Department for Children and Families. (3) The cremated remains shall be returned to the Office of the Chief Medical Examiner. The Office shall retain the remains for three years, and if no interested party, as described in subdivisions (a)(1) through (8) of this section, claims the decedent’s remains after three years, the Office shall arrange for the permanent disposition of the cremated remains consistent with any applicable law and standard funeral practices. (4) Notwithstanding any provision of subdivision (3) of this subsection to the contrary, the Office of the Chief Medical Examiner may determine that the unclaimed cremated remains of a deceased veteran shall be interred at the Vermont Veterans Memorial Cemetery pursuant to 20 V.S.A. § 1586 if: (A) at least 180 days have passed since the remains were cremated; (B) the Office of the Chief Medical Examiner either: (i) has actual knowledge that there is no interested party as provided in subdivisions (a)(1) through (8) of this section to claim the decedent’s remains; or (ii) after making reasonable efforts, has been unable to locate and contact any known interested party as provided in subdivisions (a)(1) through (8) of this section; and (C) the Office of the Chief Medical Examiner has confirmed with the Office of Veterans Affairs that the deceased veteran is eligible to be interred at the Vermont Veterans Memorial Cemetery. Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2013, No. 32, § 2; 2015, No. 23, § 45; 2019, No. 9, § 2 eff. April 23, 2019; 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023.

18 V.S.A. § 5228 Forfeiture

5228. Forfeiture An individual recognized under section 5227 of this title to have a right of disposition shall forfeit that right in the following circumstances: (1) the individual is identified by a law enforcement agency as a person of interest and likely to be prosecuted or is under prosecution for first or second degree murder or voluntary manslaughter in connection with the decedent’s death, if the status of the investigation or the prosecution is known to the funeral director or disposition facility operator, except that if the prosecution is not pursued or the individual is acquitted of the alleged crime before the remains are disposed of, the individual shall regain the right; (2) the individual does not exercise the right of disposition within three days after notification of the death or within five days after the decedent’s time of death, whichever is earlier; (3) the Probate Division of the Superior Court pursuant to section 5231 of this title determines that the individual entitled to the right of disposition and the decedent were estranged at the time of death; or (4) as otherwise ordered by the Probate Division of the Superior Court. Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023; 2023, No. 6, § 164, eff. July 1, 2023.

18 V.S.A. § 5229 Cost of disposition

5229. Cost of disposition The cost for the disposition of remains and funeral goods or services shall be borne by the decedent’s estate, subject to the limits for insolvent estates imposed by 14 V.S.A. § 1205, or by any individual who agrees to pay the costs. Nothing in this subchapter shall be construed to require a funeral director or disposition facility operator to provide goods or services for which there is no payment. Added 2007, No. 56, § 1; amended 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023.

18 V.S.A. § 5230 Rights of funeral director or operator of a disposition facility

5230. Rights of funeral director or operator of a disposition facility A funeral director or disposition facility operator may determine the permanent disposition of remains and may file a civil action in Probate Division of the Superior Court against a person, estate, banking institution, governmental agency, or other entity that may have liability for the permanent disposition, either: (1) to seek a declaratory judgment that the director’s or operator’s proposed action would be in compliance with the applicable provisions of law; or (2) to seek a judgment that the director or operator’s action is in compliance with the applicable provisions of law and to recover reasonable costs and fees for the permanent disposition when: (A) the funeral director or disposition facility operator has actual knowledge that there is no surviving family member, guardian, or individual appointed to arrange for the disposition of decedent’s remains pursuant to chapter 231 of this title; (B) the funeral director or disposition facility operator has made reasonable efforts to locate and contact any known family member, guardian, or agent; and (C) the appropriate local or State authority, if any, fails to assume responsibility for disposition of the remains within 36 hours of written notice, which may be delivered by hand, U.S. mail, facsimile transmission, electronic means, or telegraph. Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011; 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023.

18 V.S.A. § 5231 Civil action

5231. Civil action (a) Any individual who is a near relative of the decedent or the custodian of the decedent’s remains may file an action in the Probate Division of the Superior Court requesting the court to appoint an individual to make decisions regarding the disposition of the decedent’s remains or to resolve a dispute regarding the appropriate disposition of remains, including any decisions regarding funeral goods and services. The court or the individual filing the action may move to join any necessary person under the jurisdiction of the court as a party. The Agency of Human Services may also be joined as a party if it is suggested on the record that there will be insufficient financial resources to pay for funeral goods and services. (b) In making its decision, the court shall consider the following factors: (1) the decedent’s expressed directions or wishes; (2) the decedent’s religious affiliation or beliefs; (3) the cost and practicality of the proposed arrangements and disposition and the ability of the responsible party or parties to pay for the proposed arrangements and disposition; (4) the relationship between the decedent and any individual claiming the right of disposition, including whether the individual and the decedent were estranged; (5) the wishes of any individual willing to pay the cost of the proposed arrangements and disposition; (6) whether the proposed arrangements are inclusive of the desires of the family; and (7) any other information the court, in its discretion, deems relevant. (c) Except as provided for under subdivision (b)(4) of this section, an individual who has paid or agreed to pay for all or part of the funeral arrangements or permanent disposition does not have greater priority to the right to disposition than as set forth in section 5227 of this title. (d)(1) A funeral director or disposition facility operator may refuse to accept bodily remains, to inter or otherwise dispose of bodily remains, or to complete the arrangements for the permanent disposition until such time as the court issues an order or the parties to the action submit a final stipulation approved by the court regarding the disposition of remains. (2) If the funeral director or disposition facility operator retains the remains for permanent disposition while an action is pending, the funeral director or disposition facility operator may refrigerate or shelter the remains while awaiting a preliminary or final order of the court. The cost of refrigeration or sheltering shall be the responsibility of the party or parties who contracted with the funeral director or disposition facility operator, the person or entity who is otherwise liable for the costs of permanent disposition, or the estate as ordered by the court, or any combination of these, and the court may include in the order a decision concerning which of these shall be responsible for paying these costs. (e) If a funeral director or disposition facility operator commences an action under this section, the funeral director or disposition facility operator may ask the court to include an order against the estate or the parties for reasonable legal fees and costs. If the estate is insolvent and no other person should be responsible for the filing fee, the court may waive the filing fee. The court, in its discretion, may order a party or parties to pay the reasonable costs of permanent disposition as a condition of the appointment to make disposition decisions. The court may order that a party, or parties, including the petitioner, pay reasonable legal fees and costs associated with the action. (f) Any appeal from the Probate Division shall be on the record to the Civil Division of the Superior Court. There shall be no appeal as a matter of right to the Supreme Court. Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 148, eff. Feb. 1, 2011; 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023.

18 V.S.A. § 5232 Procedures generally

5232. Procedures generally (a) Any action filed under this subchapter shall be summary in nature, and a hearing shall be held as soon as practicable. The Probate Division of the Superior Court may order interim, ex parte relief based on available information. In extraordinary circumstances, the court may authorize use of discovery, subject to the inherent time constraints required because of the subject matter. The Vermont Rules of Evidence shall not apply, except for those rules respecting privilege. Affidavits of parties and witnesses shall be admissible evidence that may be rebutted by witnesses or affidavits offered by other parties. Other evidence is admissible if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their daily affairs. Telephone testimony shall be authorized unless otherwise ordered for good cause shown. Any person shall be entitled, but not required, to be represented by an attorney. Added 2007, No. 56, § 1; amended 2009, No. 154 (Adj. Sess.), § 238a, eff. Feb. 1, 2011.

18 V.S.A. § 5233 Limited liability

5233. Limited liability A funeral director or disposition facility operator shall not be subject to civil liability or subject to disciplinary action for carrying out the disposition of the remains if he or she relied in good faith on a funeral service contract or authorization or for following the instructions of an individual who the funeral director or disposition facility operator reasonably believes or believed holds the right of disposition. Added 2007, No. 56, § 1; amended 2021, No. 169 (Adj. Sess.), § 7, eff. Jan. 1, 2023.

18 V.S.A. § 5234 Organ Donation Special Fund

5234. Organ Donation Special Fund There is created the Organ Donation Special Fund, which shall be a special fund established and managed pursuant to 32 V.S.A. chapter 7, subchapter 5. The Organ Donation Special Fund shall consist of any federal funds, grants, and private donations solicited by the Commissioner of Health for use within the Fund. The Organ Donation Special Fund shall be used for activities related to increasing organ donations in Vermont. Added 2013, No. 32, § 5.

Source: Vermont General Assembly (legislature.vermont.gov)URL: https://legislature.vermont.gov/statutes/chapter/18/107Fetched: 10/21/2026