South Dakota § 34-26-78 - Court determination against statutory precedence--Considerations.

§ 34-26-78. Court determination against statutory precedence--Considerations.

Notwithstanding §§ 34-26-74 to 34-26-77, inclusive, the court of the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition, and may make decisions regarding the decedent’s remains if those sharing the right of disposition cannot agree. The following provisions apply to the court’s determination:

(1)    If the persons holding the right of disposition are two or more persons with the same relationship to the decedent, and they cannot, by majority vote, make a decision regarding the disposition of the decedent’s remains, any of the persons or a funeral home with custody of the remains may file a petition asking the court to make a determination in the matter;

(2)    In making a determination under this section, the court shall consider the following:

(a)    The reasonableness and practicality of the proposed funeral arrangements and disposition;

(b)    The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;

(c)    The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition;

(d)    The convenience and needs of other families and friends wishing to pay respects;

(e)    The desires of the decedent; and

(f)    The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect;

(3)    In the event of a dispute regarding the right of disposition, a funeral home is not liable for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral home receives a court order or other written agreement signed by the parties in the disagreement that decides the final disposition of the remains. If the funeral home retains the remains for final disposition while the parties are in disagreement, the funeral home may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the court and may add the cost of embalming and refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this section, the funeral home may add the legal fees and court costs associated with a petition under this section to the cost of final disposition. This section may not be construed to require or to impose a duty upon a funeral home to bring an action under this section. A funeral home and its employees may not be held criminally or civilly liable for choosing not to bring an action under this section; and

(4)    Except to the degree it may be considered by the court under subsection (2)(c), the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater right to the right of disposition than the person would otherwise have. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person would otherwise have.

Source: SL 2022, ch 113, § 5.