Recognizes as an acceptable written instrument for disposition of remains for service members, the federal form DD93

Summary of specific provisions

Section 1: Subdivision 3 of section 4201 of the public health law is amended to read that for members of the armed forces, a federal form DD93 (record of emergency data), setting forth a service member's designation of a person authorized to direct disposition of human remains, required pursuant to the requirements of section five hundred sixty-four of the National Defense Authorization Act of 2008, Public Law 109-163 of the one hundred ninth Congress, may used as the written instrument referred to in paragraph (a) of subdivi- sion two of this section.

Section 2: States the effective date.

Justification

This legislation is recommended by the Office of the Deputy Under Secretary of Defense for military Community and Family Policy as part of their top ten priorities for States, which are key quality Of life issues for service members and families. New York State lags behind other States in adoption of these legislative remedies.

New York State law on disposition: of remains for military service members does not currently provide for the accommodation of the expressed, written wishes of service members through execution of the federally prescribed "Record of Emergency Data." At present, New York Public Health Law Title 42, Section 4201, subdivision 2, states in part, "The following persons in descending priority shall have the right to control the disposition of the remains. of such decedent:

(i) the person designated in a written instrument executed. pursuant to the provisions of this section;

(ii) the decedent's surviving spouse;

{ii-a) the decedent's surviving domestic partner;

(iii) any of the decedent's surviving children eighteen years of age or older;

(iv) either of the decedent's surviving parents;

Subdivision 3 states, "The written instrument referred to in paragraph (a) of subdivision two of this section may be in substantially the following form, and must be signed and dated by the decedent and the agent and properly witnessed: ..."

When active duty and activated guard/reserve members complete the feder- ally mandated DO Form 93 in accordance with Section 564 of Public Law 109-163, effective January 2006, they designate a person authorized to direct disposition of their remains in event of death, and the document is witnessed by an authorized military official.

New York law in regard to designation of a person authorized to deter- mine disposition of remains presents three issues that are currently problematic relative to a service member's official designation, using the federal law: (1) the requirement for two witnesses; (2) the require- ment for the designated person to sign the form; and (3) the recommended language for the declaration.

As stated above, service members designate a person responsible for disposition in accordance with federal law. Because some state laws do not currently recognize the federal form as an acceptable one for service members, there have been several instances of civil actions between family members over the ultimate disposition of a fallen service member's remains.

To eliminate this conflict with federal law in relation to service members, numerous states have amended state law to recognize the DD Form 93 ("Record of Emergency Data") as an acceptable written instrument for service members, notwithstanding other parts of state law regarding disposition.

According to the United States Department of Defense-State Liaison Office, this legislation is in keeping with the 'best practices' language prescribed by the Department of Defense to partner with States to support military families.

Prior legislative history

New legislation.

Fiscal implications

None.

Effective date

This act would take effect immediately.