The Iowa Supreme Court has ruled that a 2008 law allows a husband to decide where to bury his wife even if it goes against her wishes. The case involved Mary Florence Whalen — who was known as Flo.
Flo had lived in Montana and raised 10 children there with her husband Michael. The couple had separated in 1996, but did not get a divorce, and Michael moved to Anamosa. During a visit to Anamosa in 2011, Flo became ill. She stayed with Michael until she died in June of 2012.
Flo directed in her will that her remains be sent to Montana for burial. Michael however said she should be buried in Anamosa. The probate court ruled Flo’s direction in her will overrode Michael’s burial decision as her surviving spouse.
The Iowa Supreme Court says the 2008 law requires the placement of the burial declaration with the durable power of attorney for health care, which Flo’s was not. The Supreme Court overturned the probate court’s ruling and said the way the law is worded unless Michael voluntarily permits Flo’s burial in Montana, their decision will leave her wishes unfulfilled.
Chief Justice Mark Cady issued a dissenting opinion. It said the statute “did not clearly negate our rich common law that has always protected our last wishes to claim our final resting place.” He said he is confident our legislature did not intend the result of this case, nor to render future generations of Iowans powerless to direct for themselves their funeral arrangements and final disposition of their remains.
Justic Zager joined Cady in the dissent.
See the complere ruling here: Flo Whalen ruling PDF