Woman must be buried in Iowa, despite her wishes, Supreme Court rules

Woman wanted to be buried in Montana, but wishes, designee must be spelled out in writing

Iowa residents who want to be buried in a specific place must designate someone in writing to carry out their plans or the wishes they have expressed to friends and family can be ignored by their survivors.

The Iowa Supreme Court ruled Friday that a 2008 law requires residents to spell out in their health care power of attorney document who they want to handle burial arrangements. If they don't, the decision will fall first to their spouse and then to their children, but they are not required to honor burial wishes.

The court made the ruling in the case of Mary Florence Whalen, who died in June in Anamosa at age 86.

Whalen was visiting Iowa from New Mexico last year, when she became too ill to return home. In Iowa, she stayed with her husband, Michael Whalen, who had separated from her in 1996 and moved to Anamosa.

Two months before she died, in April 2012, Whalen wrote a letter to her 10 children and her sister, Mary Ann McCluskey, the executor of her estate. In the letter, she said she wanted to be buried in Billings, Mont., because she had spent 51 years of her life and raised 10 children there. She said she had already purchased a plot and a casket and left instructions for her burial.

"I just want all of you to know that this is very important to me and because you all love and respect me, I know that you will see that my wishes are carried out," the letter said.

But although Whalen had named her sister executor and detailed the burial wishes in her will, she did not designate anyone to handle burial arrangements on her health care power of attorney declaration.

After she died, Michael Whalen refused to allow her body to be transported to Montana and insisted that she be buried in Anamosa.

McCluskey sued, asking the courts to allow her to carry out Mary Whalen's wishes.

Whalen's body has remained at an Anamosa funeral home during the legal fight.

Michael Whalen, 93, a retired attorney, said in a telephone interview that he is simply fighting for the right to designate where his wife would be buried.

"I wanted her to be buried in Iowa because she wanted to be buried here, and I loved her and she was my wife," he said.

He declined to elaborate further.

McCluskey argued that Iowa's Final Disposition Act enacted in 2008 does not displace long-respected common law that gives individuals the right to direct where they want to be buried.

But the Iowa Supreme Court disagreed. The court said the Legislature intentionally chose not to force survivors to be bound by burial instructions left by the deceased.

"...the legislature chose the clarity and certainty that comes with a specified living decision maker who has sole discretion over burial decisions, instead of requiring the living to enforce the decedent's instructions regarding burial," the court said.

The court said it does not have authority to rewrite the law and ordered the funeral director to allow Michael Whalen to make burial arrangements.

Chief Justice Mark Cady disagreed with the five justices in the majority. He wrote in his own opinion that the Legislature did not intend to replace the ability of people to decide where they'd like to be buried. He said the Legislature sought only to resolve disputes that occur when someone dies without leaving instructions.

He said people have been allowed to determine where they'd be buried for centuries and that autonomy has been always honored in state law.

"Last wishes are sacrosanct, and every law or statute concerning last wishes has been constructed solidly upon this fundamental, common understanding," he wrote. "This statute did not clearly negate our rich common law that has always protected our last wishes to claim our final resting place."Justice Bruce Zager joined Cady in his opinion.

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