A state official has asked Texas Attorney General Ken Paxton for a legal opinion on interpreting prepaid funeral contracts, and invited other government and industry entities to weigh in.

“The Department has become aware of instances in which a decedent’s agent requests a method of final disposition of remains that may be interpreted as inconsistent with the method of disposition desired by the decedent,” Texas Department of Banking Commissioner Charles Cooper said in a letter to Paxton May 29. “I am therefore requesting an opinion on the following question: If an executed prepaid funeral contract lacks an affirmative election with respect to a type of disposition, must or may a funeral provider infer the decedent’s election from the contents of a prepaid funeral contract?”

The commissioner asked for “clarifying the law relevant to this sensitive issue.” He added he was sending a copy of the request to interested parties who may want to submit legal briefing on the question. Those included the Texas Funeral Service Commission, the Texas Funeral Directors Association and the Texas Cemetery Association.

According to Cooper, the trouble is with older prepaid funeral contracts that lack a series of boxes to check: burial, cremation or other. The newer forms make it hard to misread the parties’ intentions because those boxes must be checked, but older version of the paperwork don’t always make the plans clear unless purchasers write in their wishes. In those cases, the funeral contractor is left to ascertain the intentions by looking at products and services purchased. For example, Cooper said, purchase of an outer burial container would indicate a desire to be buried rather than cremated. But the commissioner’s letter suggested conflicts occur when a family member had a different idea about the final resting place.

“The Department recognizes that families or others responsible for the disposition of a decedent’s remains may desire some degree of flexibility with respect to funeral arrangements. At the same time, however, we recognize the importance of honoring the disposition directions contained in a prepaid funeral contract,” Cooper said. “It would appear in the interest of the State, our citizens, and the funeral industry itself to provide clear direction as to whether a funeral provider may or must infer the type of disposition when a purchaser has not expressly stated it in a prepaid funeral contract.”