Control is something that we all desire to one extent or another. So much of our lives are spent trying to figure out ways to stabilize our lives for ourselves and our children. We work, at least in part, to be able to provide a home environment for our children so that they can grow up and not wonder about where they will lay their heads at night. We exercise and eat right so that we do not have medical issues that require a great deal of medical intervention in the future. Taking medication, attending physical therapy, and seeing the doctor frequently probably is not what you or I have in mind in terms of stability or control in our golden years. 

We can look at divorce in the same way. If you have gone through a divorce, then you know firsthand the difficulties associated with that process. The time that went into hiring an attorney and going through the case. The stress that came with needing to decide important issues regarding child custody and property division. Even the uncertainty that came with no longer being married can be stressful to you. All of this was done to help to ensure a better future for yourself and your children. But for this possibility going through the hardships of divorce would not be worth the trouble. 

A divorce case can decide a great deal for you. What your custody situation will look like with your children was negotiated upon. How frequently you would be able to see your children is often a subject that is debated back and forth in divorce. Debts, property, and the division of those items can shape your post-divorce life a great deal given that your financial wherewithal can be determined a great deal by how your property is split up after a divorce. Many people struggle financially after a divorce due in no small part to the disruption of the normal course of their life. Having your income cut in half is something that impacts your budget tremendously. 

Helping yourself prepare for life after a divorce

There are steps that you can take during and after a divorce to prepare yourself for life as a single person. One of those steps that would make a great deal of sense would be to create a will for yourself. Or, in the alternative, if you already have a will you may need to update the will based on the changes in your life. Updating the beneficiaries on your will probably means removing your ex-spouse from being able to receive property of yours when you pass away. For instance, you may want to include the names of your children, another relative, or even your church or charity of choice as a key beneficiary under your will. 

That is the beauty of having a will: that you will be able to determine where your property goes after you pass away. This would be as opposed to allowing a probate court judge to make that determination for you. Getting back to the subject that I brought up at the beginning of today’s blog post you can exert a great deal of control over your situation when you have a will. Once you pass away without a will you are leaving a lot up to chance. The great part about having a will is that a small bit of effort can yield great results not only for you but for your family as well.

What happens to your body after you pass away?

this is probably not a question that you considered very much during your divorce or even during the process of drafting and signing a will. Of course, it is inescapable to consider your death when you are drafting a will. However, what happens to your body after your passing it’s a specific question to ask and one that I don’t encounter much in my work as an attorney. However, this is a question that has been asked and answered by Texas legal decisions. It may impact your willingness to have a will drafted for yourself. 

let’s suppose that your l we’re driving home from work one day and was broadsided by another vehicle. Unfortunately, you passed away in the accident and your daughter was contacted regarding what to do with your body. Your daughter was a big believer in donating organs and therefore she allowed an organ donation charity to harvest your organs After an autopsy was performed. An issue could arise if your daughter later takes issue with how your organs are treated or how they are donated once they have been harvested. For example, your daughter may argue that she suffered anguish since your organs may not have been donated in the way that she understood that they would be.

Texas courts would likely hold that your daughter, in this case, would not have a specific property interest in your organs and likely would have what they call a quasi-property interest. This means that your daughter may have the authority to determine where your organs and body end up after you pass but not to the point where she could collect damages based on mental anguish over how the organs were harvested and distributed. however, courts in Texas have issued decisions regarding this subject that are important regarding property rights if you have a will.

Historically, your body wants deceased is not technically counted as property. Under English common law your next of kin, such as your spouse or children, have held a property right to the body insofar as burial is concerned. This is not a complete property right, however. In my mind, complete property right means the ability to cell, divide, or otherwise have complete control over an item or asset. It is strange to think about your physical body in this way but when we are talking about property and wills, I can’t see another way to avoid it. Texas courts have held for many years that there is no property right in a dead person’s body. However, your family must bury, cremate or otherwise handle the body once you have died. 

What is the anatomical gift act?

The Texas Legislature has recognized how quickly medical science has progressed around a deceased person’s body. The quasi-property rights of your family regarding your body have been expanded under the revised uniform anatomical gift act. This revised act grants your family the right to make an anatomical gift of your body or part of your body for a transplant, therapy, research, or education. The act even goes into detail on how to make a gift before your death. To determine whose property your organs are alleged to be, we must look at the circumstances of your life before your passing.

in this case, your daughter would have the right to direct the burial of your body after your passing. This much we have already discussed. Next, there are rights for your children to be able to sue for mental anguish damages when acts are performed on your body or tissues without their consent in limited circumstances. Finally, the Texas anatomical gift act has also provided the ability for you or you’re next of kin to be able to gift your tissues and organs to medical causes.

What your next step kin would not have the right to do in this situation would be to have your body for any other purpose than to bury it or otherwise attend to its final disposition. Your daughter or any other person would not have the right to use tissues unless they have been designated by the individual as a transplant to the recipient as seen through the anatomical gift act. In short, a family member or next of kin of yours has limited rights and it certainly is not true that your organs would become the property of your loved one once you pass away.

This is not to say that your next of kin do not have some right to perform certain actions regarding your body once you pass away period to preserve its remains and to bury your body is a legal right that we have already talked about is well established under Texas law. Note that a decent burial of your body includes the right to possess your body in the same condition it was in at the top time of your passing. Husbands and wives also have the primary paramount right to possess their spouse’s body above that of any other person. Exposes would not appear to have the same right and would not even qualify as next of kin given the dissolution of the marriage that occurred previously.

Would your organs become part of your estate after your passing?

The anatomical gift act gives you the right to designate a recipient of your organs and tissues while you are alive. Additionally, the act also gives you’re next of kin or executor at the time of your death the right to designate a recipient immediately. However, the anatomical gift act does not give you are state the right to designate a recipient once you pass away. Additionally, your estate cannot be compensated financially for having sold your organs. All the anatomical gift act does is allow for a person to charge a reasonable amount of money for certain services such as removing and processing your organs. Compensation for the tissue itself is not provided for in the act.

What does this all mean for you? To sum everything up, you can designate a recipient for your tissues before you pass away. However, once you pass away your estate cannot then designate a recipient or receive compensation for those issues. Even if you have a will set up this cannot be the job of your executor. You must provide for something inside your will and likely notify the intended recipient before the passing of your intent to give them your body or organs for any purposes scientific or otherwise. you are a state that would have fewer rights to your body and tissues than your next of kin would. At least your next of kin can designate a recipient once you pass away.

This is all rather complicated. We have a situation where Texas courts have ruled that your body and your organs after your passing cannot be characterized as property of either you’re next of kin or your estate. Your next of kin have a right to determine, to an extent, what should be done with your body insofar as it includes burial or the proper and final disposition. However, this is far from clear-cut in terms of how the circumstances of your life will be impacted by these types of decisions. We know what the law says but ultimately how and plays out in your specific situation is something different altogether.

Rather than leave this situation to chance there are some steps that you can follow through with that will better position you to be able to exert as much control as possible over your body both after divorce and after you pass away. We have already discussed that this subject matter can be complicated and the more circumstances that you have going on in your life the less likely that you will be able to say for certain what will or will not happen.

What can you do to prepare for an end-of-life situation?

the first thing that I will mention in this regard is that you cannot let’s say for certain when you will pass away. what this means for you is that if you are planning on dealing with this issue at some point in the future that is a mistake. Since you do not know when the end of your life will come, you should seriously consider acting and dealing with what needs to be done now in terms of planning for your life moving forward. deciding to take concrete steps towards having a wheel drafted is probably where you should begin.

You can begin by thinking about what assets are property you own which do not need to be covered by a will for your wishes to be followed your passing as far as inheriting property. assets such as life insurance, retirement plans, and pensions I’ll allow you to list beneficiaries within the plan or policy itself. These items can pass directly through to these folks without first having to go through probate. The important thing for you to stay up to date on is to ensure that your beneficiaries are based on your current circumstances. What you should be sure of is that your ex-spouse there’s not listed on any of these forms of your policies unless it is your intent for your ex-spouse to inherit this property from you.

Next, when it comes to your life and the drafting of a will you should consider what circumstances are relevant to you and make sure to include language in your will that accounts for those circumstances. The best way to do this is to consult with experienced probate or estate planning attorney. I’m going to an experienced attorney who knows how to structure a will and can creatively help you to think of solutions to problems that you are encountering in your post-divorce life regarding estate planning and preparation for end-of-life scenarios.

As we saw in today’s blog post your next of kin has some degree of authority regarding your body and your organs in terms of donation after your passing. He or she will have more authority in terms of being able to claim your body and determine details for your burial. However, your estate has no property rights to your body and even your next of kind has little in the way of property rights beyond what we have already covered. For this reason, the best thing that you can probably do regarding your wishes for your body after your passing is to think ahead. 

From where I sit, that means including language in your will with your specific desires for what is to be done with your body. This means specifying your burial method, Funeral Home, other details about what you want to be done with your body after your passing before burial. If you want to donate your body to science, a hospital, or for research purposes you should notate this as well. Also, merely selecting on your driver’s license that you are now an organ donor would not be sufficient for me. You should make note of this in your will so there will be fewer questions about your true intentions after you pass away. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law and probate law attorneys offering have charged consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of probate and estate planning as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.