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Virginia Law Regarding Disposition of Remains

Virginia has specific provisions for those wishing to arrange for the disposition of their body upon their death.  Virginia Code § 54.1-2825 states that any person can create a signed, notarized document identifying who the person wants to be responsible for decisions relating to their funeral and what to do with their remains.  The named person then has priority over all others so long as the document is provided to the funeral home within 48 hours after the funeral home receives the body.

Otherwise, the next of kin become the decision-makers. Virginia law has a framework for resolving disputes between next of kin.  Virginia Code § 54.1-2807.01 states that any next of kin can petition the circuit court where the loved one resided at the time of death to determine which next of kin should make the decisions regarding funeral services and burial/cremation.   The statute charges the Court to look at the wishes of the loved one, the relationship between the next of kin and the loved one, and any other factor the court considers relevant.  The Court will then enter an order appointing one of the next of kin with the authority.  Where there is such a dispute, at least one of the next of kin is required to notify the funeral home of the dispute within 48 hours of the funeral home receiving the remains, after which the funeral home must immediately stop making arrangements for the funeral or disposition. In 2025, the Virginia General Assembly added to this statute, allowing funeral homes to continue with funeral and disposition arrangements if they have not received an agreement or court order regarding disposition within 30 days of being notified of the dispute.

There are also times where the next of kin may disagree about how the ashes (called “cremains” in the statutes) should be divided.  The loved one may provide direction in their will regarding their remains, or they may include directions on division in the written statement provided for in Virginia Code § 54.1-2825.  However, if there is no such direction, it is likely that the person designated with the decision-making authority (whether by writing, by appointment, or by Court order) can decide how the ashes should be divided.  While the Circuit Court may not have specific authority to order how ashes should be divided, it may look at which next of kin is willing to split the ashes reasonably in determining who to appoint.

If there are no next of kin, an agent named in an advanced directive with authority to handle such matters may make decisions regarding funeral and disposition arrangements. See The Virginia Health Care Decisions Act. Otherwise, a guardian appointed under Virginia § 64.2-2000 can make decisions regarding funeral and disposition arrangements. Virginia Code § 64.2-2019(F).  If the appointment was for an incapacitated person that passed, the guardian must first make a good faith effort to locate the next of kin to determine if the next of kin wishes to make such arrangements.  The guardian is immune from liability so long as they follow the provisions of the statute.

If none of the above apply, then any other person 18 years or older able to identify the deceased and willing to pay for the costs with the disposition may make those arrangements. 

Heirs to estates and next of kin should be mindful of these laws when handling the disposition of their loved ones’ remains and arranging funeral services.  The time constraints for ensuring that the body is handled properly are short, and it is important to review the law carefully and consult with legal counsel to determine the proper steps to ensure the decedent’s funeral arrangements and disposition are handled properly and respectfully.