Section 23-06-03 - Duty of final disposition - Indigent burial - Decedent's instructions1. The duty of final disposition of the body of a deceased individual devolves upon the following individual in the order of priority: a. Any legally competent adult given the duty of final disposition by the deceased individual in a statement conforming with section 23-06-31, except the legally competent adult specified in the statement conforming with section 23-06-31 may decline the duty of final disposition unless the individual would otherwise have the duty of final disposition under this section;b. The surviving spouse if :(1) The deceased was married;(2) The surviving spouse has not been arrested for, or pled guilty or nolo contendere to, or has been found guilty of intentionally and feloniously killing the deceased; and(3) The surviving spouse has not admitted to or been charged with intentionally and feloniously killing the deceased.c. If the deceased was not married or was intentionally and feloniously killed by the surviving spouse, or the surviving spouse was arrested for, admitted to, or was charged with intentionally and feloniously killing the deceased, and left kindred, upon the majority of the adult children of the decedent; however, in the absence of actual knowledge to the contrary, a funeral director or mortician may rely on instructions given by the child who represents to be the sole surviving child or the children who represent to constitute a majority of the surviving children;d. The surviving parent or parents of the decedent, each having equal authority;e. The adult sibling or the majority of the adult siblings of the decedent; however, in the absence of actual knowledge to the contrary, a funeral director or mortician may rely on instructions given by the sibling who represents to be the sole surviving sibling or the siblings who represent to constitute a majority of the surviving siblings;f. The adult grandchild or the majority of the adult grandchildren of the decedent; however, in the absence of actual knowledge to the contrary, a funeral director or mortician may rely on instructions given by a grandchild who represents to be the only grandchild reasonably available to control final disposition of the decedent's remains or the grandchildren who represent to constitute a majority of grandchildren reasonably available to control final disposition of the decedent's remains;g. The grandparent or the grandparents of the decedent, each having equal authority;h. The adult nieces and nephews of the decedent or a majority of the adult nieces and nephews; however, in the absence of actual knowledge to the contrary, a funeral director or mortician may rely on instructions given by a niece or nephew, who represents to be the only niece or nephew reasonably available to control final disposition of the decedent's remains or the nieces and nephews who represent to constitute a majority of the nieces and nephews reasonably available to control final disposition of the decedent's remains;i. An individual who was acting as the guardian of the decedent with authority to make health care decisions for the decedent at the time of death;j. An adult who exhibited special care and concern for the decedent;k. An individual respectively in the next degree of kinship in the order named by law to inherit the estate of the decedent; orl. The appropriate public or court authority, as required by law. For purposes of this subdivision, the appropriate public or court authority includes the human service zone of the county in which the death occurred if the individual dies without apparent financial means to provide for final disposition or the district court in the county in which the death occurred. If the duty of final disposition devolves to this level, the appropriate public or court authority may direct final disposition to a mortician or funeral director after the coroner notifies the appropriate public or court authority in writing that no individuals identified in subdivisions a through k have accepted the duty of final disposition. A person identified under this subdivision who exercises the duty of final disposition of the body of a deceased individual is immune from civil liability for any act or omission arising out of the duty of final disposition.2. If there is only one individual in a degree of relationship to the decedent described in subsection 1, and a district court determines the person and the decedent were estranged at the time of death, the right to control and the duty of disposition devolves to the next degree of relationship under subsection 1. For purposes of this subsection, "estranged" means having a relationship characterized by mutual enmity, hostility, or indifference.3. If an individual to whom the right to control and duty of disposition devolves under subsection 1, refuses to accept or declines to act upon the right or duty, that right and duty passes as follows: a. To another individual with the same degree of relationship to the decedent as the individual refusing to accept or declining to act; orb. To the individual in the next degree of relationship to the decedent under subsection 1.4. If a dispute exists regarding the right to control or duty of final disposition, the parties in dispute or the mortician or funeral director may file a petition in the district court in the county of residence of the decedent requesting the court make a determination in the matter. If the right to control and duty of final disposition devolves to more than one individual with the same degree of relationship to the decedent and those individuals do not, by majority vote, make a decision regarding arrangements and final disposition and a district court has been petitioned to make a determination, the court shall consider the following factors in making a determination: a. The reasonableness, practicality, and resources available for payment of the proposed arrangements and final disposition;b. The degree of the personal relationship between the decedent and each of the individuals in the same degree of relationship to the decedent;c. The expressed wishes and directions of the decedent and the extent to which the decedent provided resources for the purpose of carrying out the wishes or directions; andd. The degree to which the arrangements and final disposition will allow for participation by all who wish to pay respect to the decedent.5. If the individual who has the duty of final disposition does not arrange for final disposition of the body within the time required by this chapter, the individual next specified shall arrange for final disposition of the body within the requirements of this chapter.6.a. If the deceased did not leave sufficient means to pay for expenses of final disposition, and is not survived by an individual described by subsection 1 and identified for financial responsibility within the human service zone's general assistance policy, within seven days of application for services the human service zone of the county in which the deceased had residence for general assistance purposes or, if residence cannot be established, within seven days of application for assistance the human service zone of the county in which the death occurs shall employ a person to arrange for and supervise the final disposition. If the deceased was a resident or inmate of a public institution, within seven days of application for assistance the human service zone in which the deceased was a resident for general assistance purposes immediately before entering the institution shall employ a person to arrange for and supervise the final disposition.b. The reimbursement for expenses of final disposition under this subsection is three thousand five hundred dollars.c. The department of health and human services may provide for the use of a military urn, if the deceased was a veteran as defined in section 37-01-40, unless the additional cost exceeds the reimbursement rate under this subsection or a surviving spouse or the nearest of kin of the deceased elects a nonmilitary urn.d. The human service zone shall pay the charge for final disposition of an individual who is indigent as provided under this section. The human service zone shall create a process to review and accommodate a request for burial due to religious beliefs. If the deceased is eligible for indigent final disposition, the human service zone may not decrease the human service zone payment due to a nominal amount left by the deceased or contributed by a spouse, parent, adult children, or any other party to defray the expenses of final disposition. Funds adequate to allow for burial instead of cremation are considered nominal under this section.e. Except for burial conducted under subdivision d, final disposition must be conducted by cremation.f. The department of health and human services and human service zones shall maintain a standardized eligibility policy and application form to be used for the purposes of indigent final disposition application.7. If the individual with the duty of final disposition under this section, or the personal representative of the decedent's estate, if any, is aware of the decedent's instructions regarding the disposition of the remains, that person shall honor those instructions, to the extent reasonable and possible, to the extent the instructions do not impose an economic or emotional hardship. A decedent's instructions may be reflected in a variety of methods, including pre-need funeral arrangements a deceased articulated and funded in a pre-need funeral service contract, a health care directive, a durable power of attorney for health care, a power of attorney, a will, a document created under section 23-06-31, or a document of gift for an anatomical gift.8. If the decedent died while serving in any branch of the United States armed forces, the United States reserve forces, or the national guard, as provided by 10 U.S.C. 1481 section (a)(1) through (8) as effective through December 2001, and completed a United States department of defense record of emergency data, DD form 93, or its successor form or its equivalent branch's form, the duty to bury or cremate the decedent or to provide other funeral and disposition arrangements for the decedent devolves on the person authorized by the decedent pursuant to that form.9. A funeral director or mortician has complete authority to control the final disposition and to proceed under this chapter to recover reasonable charges for the final disposition if:a. The funeral director or mortician has actual knowledge none of the individuals described in subsection 1 exist, can be found after reasonable inquiry, or can be contacted by reasonable means; andb. Within thirty-six hours after having been given written notice of the facts, the appropriate court or public authority fails to assume responsibility for disposition of the remains. Written notice may be delivered by hand, United States mail, or facsimile transmission.Amended by S.L. 2023, ch. 237 (SB 2139),§ 2, eff. 8/1/2023.Amended by S.L. 2023 , ch. 238( HB 1363 ), § 1, eff. 8/1/2023.Amended by S.L. 2021 , ch. 352( HB 1247 ), § 162, eff. 9/1/2022.Amended by S.L. 2019 , ch. 391( SB 2124 ), § 17, eff. 1/1/2020.Amended by S.L. 2019 , ch. 207( SB 2208 ), § 1, eff. 8/1/2019.Amended by S.L. 2017 , ch. 92( HB 1294 ), § 8, eff. 8/1/2017.Amended by S.L. 2017 , ch. 188( HB 1338 ), § 1, eff. 8/1/2017.Amended by S.L. 2015 , ch. 189( SB 2238 ), § 1, eff. 8/1/2015.Amended by S.L. 2011 , ch. 186( SB 2116 ), § 1, eff. 8/1/2011.