Concept and Nature of the Burial Directive
Die Burial Directive is a written declaration of intent by which a person bindingly sets out their wishes regarding their own burial in the event of death. This directive specifically regulates the manner and place of burial, who is to be entrusted with carrying it out, and the detailed procedures to follow. The burial directive is not part of the actual estate and is rather of a public law nature. Under German law, it is an important instrument of self-determined post-mortem care and serves to implement post-mortem personality rights.
Legal Foundations
Statutory Classification
In Germany, the burial directive is not explicitly codified in the German Civil Code (BGB), but instead is subject to a variety of state regulations governing burial. The relevant rules are generally found in the burial laws of each federal state. The post-mortem personality right, especially the right to respect for the rest of the deceased and the right to death care, plays a significant role here.
Relationship to Wills and Instructions Upon Death
The burial directive is to be distinguished from testamentary dispositions – in particular those found in §§ 1937 ff. BGB. Unlike a will, the burial directive directly addresses the modalities of the burial and takes effect immediately upon death, without requiring probate. Mixing inheritance dispositions with burial wishes in a will is often impractical, since the testament is frequently only opened after the burial. The burial directive should therefore be drafted as a separate document that is easy to find and accessible to relatives.
Content and Regulatory Areas
Possible Contents of Regulation
The burial directive may include the following aspects:
- Type of burial: Determination of earth burial, cremation, sea burial, tree burial, or other natural forms of burial
- Place of burial: Specification of the location, for example cemetery, gravesite, columbarium, maritime area, etc.
- Course of the funeral service: Organization of the ritual, selection of music, speakers, religious ceremonies
- Appointment of a particular person or company to carry out the arrangements (e.g. funeral home)
- Decision regarding the design of the grave, grave stone, laying out of the body, and the use of flowers and wreaths
- Handling of the ashes or custody of the urn in the case of cremation
- Extent and type of notification of the death, preparation of obituaries, and notification of additional persons
Formal Requirements
There are no strict legal formal requirements for the burial directive. A declaration of intent, signed by hand and clearly identified as a burial directive, is recommended in order to establish legal clarity and avoid misunderstandings. Notarial certification is not mandatory, but can increase evidentiary value. The directive should be free from doubt as to its authorship and content and should be sufficiently specific.
Binding Effect and Enforceability of the Burial Directive
Legal Binding Nature
The orders included in a burial directive are generally binding, provided they do not conflict with any statutory or regulatory provisions. The authority to decide on the modalities of one’s own burial is an expression of the post-mortem personality right and, as a rule, takes precedence over the wishes of potential relatives.
Binding effect is limited when:
- public law regulations prevent implementation (e.g. hygiene regulations, cemetery regulations)
- execution would involve unreasonable costs or insurmountable difficulties for the relatives
- actual obstacles oppose the will of the deceased (e.g. lack of options for sea or tree burial at the location)
Priority of the Burial Directive over the Right to Death Care
The right to death care belongs to the closest relatives or to a person named by the deceased. An effective burial directive generally withdraws from the relatives the right to independently decide on the modalities of the burial. In case of conflict between the burial directive and the wishes of the relatives, the directive generally has priority.
Enforcement and Practical Implementation
As long as the burial directive is presented in the event of death, the contracted companies and those authorized for care of the deceased are basically obliged to comply. Should relatives or third parties ignore the directive, this may give rise to claims for damages or injunctive relief. In some cases, the competent regulatory authority may also be involved to enforce the directive.
Distinction from Other Directives and Instructions
Burial Directive and Pre-need Contract
While the burial directive regulates only the modalities, the burial pre-need contract is a binding agreement between a person and a funeral home for the performance and financial security of the desired burial forms. Both instruments can usefully complement each other.
Difference from Advance Healthcare Directive and Power of Attorney
The burial directive relates exclusively to the modalities of burial after death, whereas the advance healthcare directive concerns medical measures during lifetime. The same applies to the power of attorney, which is enforced during the lifetime and regulates cases where a person becomes incapable of acting.
Storage, Updating and Accessibility
It is strongly recommended that the burial directive be stored so that it can be quickly found and passed on to the relevant persons (e.g. obligors, appointees and the funeral home) in the event of death. Frequently, separate safekeeping at home, with trusted persons or—if possible—deposit at a municipal authority may be considered. The directive should be checked regularly for its up-to-dateness and legality.
International Private Law
If deaths occur in an international context, further complications may arise regarding the recognition and implementation of burial directives abroad. Usually, the law of the country in which the burial is to take place applies, and German burial directives do not necessarily have to be recognized in other jurisdictions.
Conclusion
The burial directive allows for a self-determined arrangement of one’s own burial and is a key element in the area of post-mortem personality rights. It provides clarity for relatives, prevents disputes, and supports the implementation of individual burial wishes. Careful wording, easy accessibility and awareness of the relevant legal framework ensure a high level of legal certainty and binding force.
Frequently Asked Questions
Who is authorized to establish a burial directive and are there formal requirements?
In principle, any person with full legal capacity—generally any person of legal age who is not under guardianship—is authorized to make a burial directive. Legally, the burial directive is a unilateral declaration of intent that can be drawn up privately in writing. Notarization is not required, but is possible if the author wishes, or if the directive is to be combined with other wills (e.g. testament or inheritance contract). It is advisable for the written directive to be formulated clearly and understandably and to include place, date, and signature to avoid any doubts about authenticity. There are no special formal requirements as for a will (such as a handwritten manuscript for a private will), unless the burial directive also contains testamentary dispositions. In such cases, the requirements for a will must be met.
Is the burial directive legally binding for relatives or third parties?
The burial directive is legally binding for those responsible for burial (“death care obligors”), usually the next of kin. Under German law, the deceased person has the right to determine the arrangements for their own burial, which applies through a burial directive after death. The wishes specified in a valid directive (e.g. concerning the type or place of burial) are generally binding and must be respected by the relatives, unless they conflict with legal requirements (e.g. cremation law, cemetery regulations) or are unreasonable. If no directive exists, the closest relatives decide in a predetermined order (spouse, children, parents, etc.).
Which contents can be regulated with legal effect in a burial directive?
A burial directive can legally and effectively regulate a wide range of matters. This includes the choice of type of burial (earth burial, cremation, sea burial, tree burial, etc.), the place of burial, and various procedures related to the interment (e.g. type of ceremony, participation of certain persons, religious or ideological wishes). Instructions concerning the design of the grave, the choice of coffin or urn, the gravestone or the funeral service can also be given. Only those instructions are legally effective which are consistent with applicable burial and cemetery law. Impermissible or impossible wishes—such as burial outside a licensed cemetery without an exemption—are not binding.
How does the burial directive legally differ from a testamentary disposition (will)?
Although both the burial directive and the will may be counted among dispositions upon death, they differ significantly in content and effect. The will primarily regulates estate matters (e.g. succession, legacies), whereas the burial directive exclusively addresses the arrangements of burial. Unlike a will, a burial directive does not have to meet strict formal requirements (such as being handwritten) or be deposited with the probate court. Burial arrangements can also be included in a will. It should be noted, however, that wills are usually opened only after burial, which is why separate burial directives are often more effective in practice.
Can an existing burial directive be revoked or amended?
Yes, a burial directive can be revoked or amended by the author at any time, as long as they are legally competent. Revocation is informal and may be carried out by destroying the original, issuing a new directive, or making an express declaration of revocation. What matters is that, in case of doubt, the latest and valid instruction is considered binding. If several conflicting directives exist, the more recent one takes precedence. For evidentiary purposes, amendments should again be made in writing and as clearly as possible.
What happens if multiple different burial directives exist?
If there are several burial directives with different content, under general law the most recent directive is decisive. The prerequisite for this is that the validity of the declaration is beyond doubt and there are no indications of limited legal capacity at the time of drafting. If different instructions are incompatible, the more current directive takes precedence, with a thorough examination of authenticity and validity to be conducted by those responsible for burial or, if necessary, the competent court. If there are uncertainties regarding the will of the deceased, according to established case law, the presumed will is decisive.
Do authorities or the probate court have access to the burial directive?
Normally, the burial directive does not need to be filed with the probate court or an authority, since it does not concern estate matters. Voluntary registration, such as with a notary, the guardianship court, or a central advance directive registry (e.g. with the Federal Chamber of Notaries), is possible, as is storage with a trusted person or among one’s personal papers. For smooth execution and rapid accessibility in the event of death, it is advisable to inform relatives or the funeral director of the place where the directive is kept. Authorities usually only access the directive if there are disputes or legal proceedings about the details of the burial.
