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Your Village: When I die, do I have to be embalmed?

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Have a question about what’s going on in your community? Ask Little Village. Submit your questions through the Your Village feature on our homepage, or email us at editor@littlevillagemag.com.

Illustration by Lev Cantoral/Little Village

When I die, I don’t want to be cremated or embalmed. I want my body buried underground and covered with earth — no frills. Is this possible in Iowa or will I have to be shipped out of state? —J, via the Your Village feature on LV’s homepage.

This might sound strange, but what you want may not matter. That’s because Iowa is the only state where your final wishes aren’t at least as important as whatever the person who has the best legal claim on your corpse wants to do.

It wasn’t always like this. In an 1895 case involving a family fight over a grave marker, the Iowa Supreme Court said, “It always has been, and will ever continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out.” That’s how things stood until 2013, when the court reached a very different decision in In re Estate of Whalen.

Mary “Flo” Whalen wasn’t a resident of Iowa when she died in 2012, and hadn’t been since 1953. That year, Whalen and her husband, Michael, moved to Billings, Montana. They raised 10 children there, but when they separated in 1996, Michael moved back to Iowa. Flo continued to live in Billings until 2004, when she moved to New Mexico to be near one of her daughters.

Whalen was visiting Iowa when she fell ill in December 2011. Too sick to travel home, she moved in with Michael on a temporary basis, while she struggled to regain her health. In June 2012, Whalen died at the age of 86.

Whalen had always made her desire to be buried in Billings clear. It was specified in her 2009 will: “I direct that my bodily remains be buried in a moderately priced wooden coffin … in the Holy Cross Cemetery, Billings, Montana.” Two months before she died, Whalen wrote a letter to Michael and all 10 of their children.

I wish to be buried in Billings, Montana which I considered my home when on earth … I bought a plot many years ago in Holy Cross Cemetery in Billings, in which to be buried and have paid for the opening and closing of my grave. I also have bought a casket made by the [Trappist] Monks in Peosta, Iowa, and they will ship it wherever they are asked at the time they are informed to do so.

I know that you all love me and want to honor my final requests, and that is why I am writing this to you. 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.

Despite all that, Michael insisted what Whalen really wanted was to be buried in the town where he lived. And because they’d never been divorced, Michael, a retired attorney, claimed he had the final word.

A lawsuit followed. In February 2013, the Iowa Supreme Court ruled 5 to 2 that decades of clearly expressed wishes and written instructions included in a will and to the will’s executor, as well as the letter quoted above, didn’t matter. Because in 2008, the Iowa legislature passed the Final Disposition Act.

The intention behind the act was to limit lawsuits, not guarantee respect for the dead, according to the court. Therefore, unless you leave behind written instructions matching the language specified by the act — and include those burial instructions in any medical power-of-attorney you assign — whoever has the best claim on the “quasi-property” you become (legally speaking) after death gets to decide what to do with your body.

Flo Whalen was buried near her estranged husband’s house, far from her “home when on earth.”

As for embalming, if you’re buried within 72 hours of death, Iowa law doesn’t require it, as long as your death didn’t involve a communicable disease. (You get an extra 72 hours above ground unembalmed, if what was formerly you is kept refrigerated between 38 and 42 degrees.)

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State code doesn’t require a casket, but local ordinances may apply, depending on where you’re buried. Also, cemetery owners are allowed to impose certain minimum packaging requirements for your final remains.

Of course, if you’re really worried about what happens to your body when you shuffle off this mortal coil, the simplest solution might be to not die in Iowa.

This article was originally published in Little Village issue 252.


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