Oklahoma Bar Journal

Laid to Rest: Making a Clear Plan for How Your Client's Remains Are To Be Disposed

By Darcy N. Worth

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The goal of a client’s estate plan should be to leave a roadmap, not a mess, for their loved ones after they are gone. Traditional estate plans include rules for the treatment and disposition of a person’s money, real estate and physical property. One thing often missing from estate plans is a form that allows the client to indicate how they want their remains to be treated after they are gone. Such a form would avoid disputes surrounding the treatment of a person’s remains and give a clear path to the survivors over how to honor a person once they have passed. These types of disputes are becoming more of a regular occurrence after people’s deaths – creating a frenzy of fighting over what to do, leading to increased pain and cost after a loved one has died.

Disputes over the right to control remains are often over a few key issues: if the person is to have a body burial or be cremated, where the body is to be buried, how cremated ashes are to be dispersed or even if the body should be embalmed. The importance levied on these disagreements is made heavier by the fact that decisions on human remains, once dealt with, are hard to undo. The bodies can be irreversibly changed upon a decision, scattered and unable to be retrieved or buried in a formal cemetery. When a formal burial is performed, exhuming and moving remains is a bureaucratic nightmare to perform due to the laws regarding human remains.[1] All of these factors make planning for your client’s loved ones who survive them that much more important.

Luckily, the state of Oklahoma provides a clear path for estate planners to give this additional service to their clients,[2] but many do not know about it, or for one reason or another, it is not included in the traditional estate plan package. A disposal of remains document should be standard practice in any Oklahoma estate plan as it avoids disputes and provides clarity to the loved ones left behind.


In estate planning, we regularly hear amusing ideas from a party on how they want to be buried. No matter how witty the funeral or burial ideas are, if the client’s desires are not recorded in the correct manner, then the ideas they have for their memorial or final resting place might not be realized. Even worse, the desires a client may have are often flowing through the grapevine and lack a clearly articulated plan, which can cause infighting or an eventual lawsuit over simply how to honor your client’s wishes. This is what happened in many of the disputes discussed in this article.

Infamous Disputes

While the matter of how remains are disposed of may initially seem trivial, it is an area of the law that is continually growing. A prime example of this dispute comes from a fellow Oklahoman and national treasure, Jim Thorpe,[3] a member of the Sac and Fox Nation of Oklahoma[4] who lived an accolade-filled life. The connections to Oklahoma and his native roots were foundational in Mr. Thorpe’s life, and he had hoped they would be as well in his death. After Mr. Thorpe passed away, his children began following the verbal wishes he had expressed to them for his burial to be in Oklahoma following the traditions of his tribe.[5] Unfortunately, this is not what occurred.

At the time of Mr. Thorpe’s death, he was married to his third wife, Patsy Thorpe, who had often shown disapproval for Mr. Thorpe’s pursued connection with his Native American ancestry.[6] While Mr. Thorpe’s burial rituals were being performed by his tribe in the presence of his family, Patsy stormed in with police officers and took his body away from his funeral.[7] His wife then had a Catholic funeral mass performed and began shopping for the location of Mr. Thorpe’s final resting place.[8] Patsy wanted his funeral to be paid for by someone else and for a memorial to be set up surrounding his burial place. After the state of Oklahoma let her know they did not have the funds to do so, she moved his body to the highest bidder – a town in the state of Pennsylvania, where Mr. Thorpe had no real connections.[9]

Since this decision by Patsy, Mr. Thorpe’s family members have filed multiple lawsuits in an attempt to have their father buried in Oklahoma, where they believe he would want to be buried. To date, they have been unsuccessful.[10] Whatever thoughts you might have on how things ended for Mr. Thorpe, it is clear there have been years of heartache over his death relived by the family members and hundreds of thousands of dollars spent in the court systems fighting a decision made by a family left with no legally binding instructions.

Jim Thorpe’s story isn’t the only one of its kind; there have been many more public figures whose families or loved ones have disputed these types of issues in the public sphere. Baseball legend Ted Williams' family fought over where and how he was to be buried, leading to hundreds of thousands of dollars in litigation costs;[11] socialite Anna Nicole Smith,[12] baseball star Kirby Puckett[13] and musician James Brown[14] all had public disputes over how their bodies were to be treated after their death as well. All these disagreements could have been avoided had the deceased left clear and binding directions.

While this may sound like the type of story that only happens to professional athletes or celebrities, it occurs to regular people every day. In fact, our firm recently had a case where the children and the spouse of the deceased disagreed on what they thought the deceased would have desired (burial or cremation), which resulted in a delay of the ceremony, higher legal costs and further division and hurt in an already grieving family. There are countless other stories of ordinary families who have been torn apart or further hurt by disputes over how to give proper burials to their loved ones.

As estate planners, we have the ability to help families avoid these conflicts with a simple form added to our estate planning packages, providing better services to our clients by arming them with a clear plan to avoid increased costs and hurt.


Fortunately, Oklahoma provides individuals with the ability to declare how their bodies should be treated after their death by statute and case law.

Oklahoma Statutes

In Oklahoma, the applicable statute that provides how a person may direct how their remains are treated is found at 21 O.S. 2011 §1151. The statute gives a clear outline of a person’s right to choose how their remains are handled, how a person should make these decisions, as well as a punishment for those who choose to go against the clearly stated wishes of the deceased.

Specifically, in Oklahoma, a person has the right to choose how to have their remains disposed of and may do so by leaving a clear sworn affidavit outlining what they would like done with their remains and, most importantly, who they would like to carry out those wishes.[15] If these steps are fulfilled, they will comply with the requirements of the statute, and there will be an enforceable declaration for how the decedent is laid to rest.

Oklahoma Case Law

Beyond the statutes, case law in Oklahoma clarifies how to effectively use this language.

               In re Estate of Downing. In re Estate of Downing involved a common-law wife and the children of the deceased fighting over whether the deceased should be buried or cremated.[16] The common-law wife wanted to have the deceased cremated, and the children wanted a bodily burial.[17] The children alleged that the fact that the deceased had purchased a burial plot 50 years before and that he had given verbal statements during his life against cremation proved it would have been his intention to be buried at the end of his life.[18]

However, the children never proved that there was a written contract evidencing the purchase of a burial plot.[19] Though the children purported that the decedent had bought a burial plot, to fulfill the requirements of Section 1151(A), there must have been further proof, like a written contract for the plot or a contract for prepaid funeral services.[20] Thus, the court held that testimonial evidence of the purchase of a burial plot does not fulfill the requirements of 21 O.S. 2011 §1151(A) and §1158(1) for one’s ability to direct the disposal of one’s body and, therefore, was not proof enough to show his intention for burial.[21]

The court, in its ruling, stated:

Section 1151(A) does not provide any precise guidance for how such directive is accomplished; however, 21 O.S. 2011 § 1158(1) fills in this gap by setting forth specific requirements. Section 1158 reads as follows:

The right to control the disposition of the remains of a deceased person, the location, manner and conditions of disposition, and arrangements for funeral goods and services vests in …

    1. The decedent, provided the decedent has entered into a pre-need funeral services contract or executed a written document that meets the requirements of the State of Oklahoma;[22]

Such requirements by the state of Oklahoma are for the document to be executed in a sworn affidavit, clearly stating the assignment of the rights and the name of the person or persons to whom the right to dispose of the body has been assigned.

               Foresee v. Foresee. Another case providing guidance is Foresee v. Foresee, where the court held that a will, in order to suffice for instruction for how a person wants their body disposed of, must clearly state that the executor (or another individual) is assigned the explicit and clear right to dispose of the body.[23] Foresee[24] was similar to Downing,[25] where the deceased only made oral wishes for after his death. Specifically, his will instructed his personal representatives to pay debts associated with the deceased’s "last illness, funeral, and burial.”[26] Through his oral instructions and this portion of the will, the personal representatives believed they were the ones who had the right to dispose of the deceased’s body.[27] However, when the deceased’s estranged wife challenged this, the court held that by not explicitly stating who would serve in the role to dispose of his body in the will or otherwise, he left behind inadequate instructions to fulfill the requirements of 21 O.S. 2011 §1151.[28]

These two cases provide guidance that verbal desire or instruction alone will not suffice for legally enforceable instructions nor will vague appointments of who should carry them out.


Given the increased disputes between family members regarding a loved one’s remains, it is increasingly more important in estate planning to create and implement a form that declares, premortem, how your clients wish to be buried once they are deceased. At the very least, in an effort to avoid potential postmortem disputes, estate planning attorneys should have a conversation with clients providing their options. Given the unique Oklahoma statutes, the options and application of these forms in estate planning practices can alleviate additional costs and conflicts for clients and their families in an already difficult time right after they have lost a loved one.

Darcy N. Worth is an associate at Sherwood, McCormick & Robert, where she primarily handles estate planning and probate matters. She has a passion for educating clients on the importance of estate planning and how it can benefit every family. Prior to Sherwood, McCormick & Robert, she held a legal role at a financial management company. Ms. Worth received her law degree from the Ohio State University Moritz College of Law and her undergraduate degree from OSU.





[1] Raymond Louis Brennan, The Law Governing Cemetery Rules and Regulations 66 (2d ed. 1951).

[2] 21 O.S. §1151.

[3] Thorpe v. Borough of Jim Thorpe, 770 F.3d 255 (2014).

[4] Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023).

[5] Thorpe v. Borough of Jim Thorpe, 770 F.3d 255 (2014).

[6] Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023).

[7] Id.

[8] Id.

[9] Thorpe v. Borough of Jim Thorpe, 770 F.3d 255 (2014).

[10] Kurt Streeter, “The Spirit Of A Legend,” ESPN (2016), https://bit.ly/48WkHUD (last visited Oct. 28, 2023).

[11] Times Staff, “Ted Williams’ daughter ends fight over remains Tampa Bay Times,” (2019), https://bit.ly/3S3Tt8U (last visited Oct. 28, 2023).

[12] Abby Goodnough, “Parties Face Off Over Burial Site for Anna Nicole Smith,” New York Times, Feb. 21, 2007, https://bit.ly/48iUEqv (detailing a dispute regarding burial location between parties including Ms. Smith’s companion, her mother, her ex-boyfriend and her infant daughter).

[13] “Fiancée says Kirby Puckett wanted ashes spread on ball field,” The Times of Northwest Indiana, May 16, 2006, https://bit.ly/3vcLw8b (detailing a dispute between Mr. Puckett’s children and his fiancée over the possession and disposition of the cremated ashes).

[14] “Agreement reached over burial for James Brown,” Reuters, Feb. 21, 2007, https://bit.ly/3RKGkQr (detailing a dispute between Mr. Brown’s partner and children regarding the burial place, whether the partner was legally married to Mr. Brown and a pending paternity case in which DNA needed to be extracted from Mr. Brown’s body).

[15] 21 O.S. §§1151, 1158(1) and (2).

[16] In re Estate of Downing, 2021 OK 17, 489 P.3d 9.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Foresee v. Foresee (In re Estate of Foresee), 2020 OK 88, 475 P.3d 862.

[24] Id.

[25] In re Estate of Downing, 2021 OK 17, 489 P.3d 9.

[26] Id.

[27] Id.

[28] Id.

Originally published in the Oklahoma Bar JournalOBJ 95 No. 2 (February 2024)

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.