The Montana Right of Disposition Act

BOZEMAN — According to Montana State University Extension, Montanans have the right to make decisions about what happens to their remains after death, decisions that have legal priority over any of their survivors' wishes.

Take for example a mother who expresses to her four children she wants to be cremated after death and have her ashes scattered in a certain place. After her death, however, one child wanted to follow her mother's wishes but her three siblings disagreed.

Prior to the enactment of the Montana Right of Disposition Act in 2009, a mortician would have had to follow the direction of the majority of the children, said Marsha Goetting, MSU Extension family economics specialist.

"The act allows Montanans who are 18 years of age or older and of sound mind to indicate what they wish to be done with their bodies or remains after death," said Goetting, who is co-author of an Extension MontGuide on the subject. "Persons can select one of four methods that allows legal authority for their wishes to have priority over the preferences of survivors."

The first method is to make a prepaid funeral contract with a licensed mortuary. Goetting said there are two types of prepaid funeral contracts recognized under Montana law: a funeral trust and a funeral insurance policy. With either method, the licensed mortuary is the beneficiary. In return, the mortuary promises to provide the prepaid funeral goods or services specified in the contact.

The second method is a written instrument a person can type, handwrite or print out on their computer. The person and two witnesses – all must be at least 18 years of age and of sound mind – must sign the written instrument. Letters of last instructions, a will, a trust document, a power of attorney, or a health care directive that contains specific instructions about the disposition of the deceased's remains, will qualify as a written instrument if signed by the deceased and two witnesses, Goetting said.

The third method is an affidavit. A person can authorize another person to control the disposition of remains in an affidavit signed before a notary.

The final method is a video, where a person can record which disposition preferences are described.

"A written confirmation of the video's existence and accuracy must be signed by two witnesses who are at least 18 years of age and of sound mind," Goetting said.