Wendy and Jen Wreck the Movies: Elizabethtown (2005), or “Sharing is Caring, Don’t Keep Your Final Wishes a Secret”

September 15, 2022 | Wendy Hoey Sheinberg | Jennifer F. Hillman | Trusts & Estates

What Happened:

Drew Baylor is a wildly successful athletic shoe designer for Mercury Sportwear until his world is turned askew when one of the shoes he designed is accused of having a design flaw.  Mercury announces a recall; Drew becomes the scapegoat; his boss publicly humiliates him and then unceremoniously fires Drew.

At his darkest moment, Drew’s sister Heather calls and tells him their father Mitch suffered a fatal heart attack while visiting his extended family in Elizabethtown, Kentucky.  Drew’s mother Hollie is grief-stricken and unable to handle Mitch’s final arrangements.  Hollie is afraid Mitch’s extended family will bury him in Kentucky, and she wants Mitch cremated.

Hollie and Mitch met when Mitch was in the Army.  There was a bit of scandal because Mitch broke up with his hometown fiancé, moved to California and married Hollie.

For the past 28 years Mitch and Hollie raised a family in Oregon.  Regardless, Mitch’s family still treats Hollie as an outsider.  After a great deal of stress and hurt feelings, Mitch is eventually cremated.  Drew is deeply conflicted about the cremation. Eventually Mitch’s family decide to hold a memorial for Mitch.  Hollie shows up, everyone tells stories about Mitch, and Drew begins to discover himself.

(Of course, there is also the typical romantic comedy plot with the will they/won’t they between Drew and flight attendant Claire – but we all knew they would end up together in the end, so why bother recapping that?)

What Should Have Happened:

Mitch and Hollie have been married for nearly 30 years.  There are unresolved conflicts between Mitch’s extended family and Hollie.   Hollie and Mitch decide it is time to downsize and move closer to their grandkids.  After selling their home in Oregon, they moved to Long Island.  Hollie meets Nick Moneta when they are both cast in a community theater production of the Ted Williams story.  Hollie confides that she and Mitch watched a news segment about Ted Williams’ posthumous family feud over the disposition of his remains.  Hollie also tells Nick that she is worried that Mitch’s extended family won’t respect Mitch’s wishes when he dies because of deep family traditions.  Nick (wisely) tells Hollie to call Wendy and Jen.

Mitch and Hollie tell Wendy and Jen that they feel very strongly that their bodies should be cremated after they die, but that Mitch’s extended family disagree and adamantly oppose cremation.  Mitch shares that the Baylors have been buried in the family plot in Elizabethtown, Kentucky, for the last two-hundred years.  Mitch and Hollie share the details of their love story and how Mitch had been serving in the Army overseas when they met and that some of Mitch’s relatives irrationally believe that Hollie “took Mitch away from them”.  Mitch and Hollie have two adult children.  Their daughter lives in Oregon and their son lives in Manhattan.

Wendy and Jen assure Hollie and Mitch that there are steps they can and should take to document their wishes.  Jen explains that putting their wishes in proper written form can avoid family disputes and hard feelings by providing loved ones with certainty. Wendy explains that people sometimes have strong feelings about cremation, and it is helpful to document those wishes.  Wendy and Jen tell Mitch and Hollie that not only can they document their wishes, but that they can also appoint a person (“agent”) to carry out their final arrangements.  Since 2006 New York has allowed people to appoint a trusted person to control the disposition of their remains.  Mitch asks, “Can’t my executor make those arrangements?” Wendy and Jen explain that the funeral usually happens before the Will is probated and that under New York law the executor does not have priority or the authority to make burial arrangements until after the Will is admitted to probate by the Surrogate’s Court, which will take time.  Instead, under New York law, there is a list of individuals who have the right to control a person’s final disposition starting with the person designated in a written instrument and followed by a set list of family members in descending order of priority.

“Wow” Hollie exclaims, “it is a relief that Mitch’s aunts and uncles can’t make a decision, but what happens if Heather and Drew disagree?”  Wendy and Jen tell Hollie and Mitch that when there is a disagreement between two people who have an equal right to make a final decision many funeral directors are not comfortable proceeding with cremation absent a clear direction and in some cases a court order.  In circumstances where someone has strong feelings about a particular arrangement, the best course is to have a properly drafted and executed final disposition agent, as well as a New York State pre-need arrangement.  Mitch and Hollie retain Wendy and Jen to draft their estate planning documents including Designations of Final Disposition Agent with successor agents and specific instructions for cremation.

Years later Wendy and Jen receive a beautiful thank you note from Hollie, Heather, and Drew.  Sadly, Mitch passed away suddenly while visiting his extended family in Kentucky.  While there were some initial arguments, once Mitch’s extended family saw Mitch’s carefully composed wishes, they did all they could to support Hollie, Heather, and Drew.  The family together held a beautiful memorial service for Mitch in Elizabethtown.

It is important to meet with knowledgeable estate planning counsel especially when your beliefs differ from those of the people you love.  Save the drama for the movies.

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