HB 585 Modifies provisions relating to the deceased

     Handler: Rehder

Current Bill Summary

- Prepared by Senate Research -

SCS/HB 585 - This act modifies several provisions relating to the deceased, including: (1) the right of sepulcher; (2) embalmers and funeral directors; and (3) trusts.

RIGHT OF SEPULCHER (Section 194.119)

Current law provides a list, in the order of priority, of next-of-kin who have the right to control the disposition of a dead human body. This act provides that the surviving spouse shall not be considered as next-of-kin if an action for dissolution of marriage has been filed and is pending in a court of competent jurisdiction. Additionally, the next-of-kin of a deceased person may delegate the final disposition of the deceased to an agent through a power of attorney.

Under this act, an individual with a superior claim to the disposition of the deceased may be notified in person or by written notice with delivery confirmation, rather than "personally served with written notice", by a person with an inferior claim who has the desire to exercise the right to control the final disposition of the deceased.

These provisions are identical to provisions of SB 291 (2021) and substantially similar to SB 598 (2020), SB 282 (2019), SCS/HCS/HB 447 (2019), HB 461 (2019), SCS/HCS/HB 1597 (2018), and provisions in HB 909 (2017).

EMBALMERS AND FUNERAL DIRECTORS (Sections 333.041, 333.042, 333.061, 333.081, and 333.315)

This act modifies the process for obtaining a license to practice embalming and to practice funeral directing by repealing much of the current law regarding licensure and proposing a new licensure process. Each applicant for a student license for embalming shall submit an application to the State Board of Embalmers and Funeral Directors, with all application fees, and furnish evidence that he or she possesses the necessary qualifications, including current enrollment in, or completion of, an accredited funeral service education program. After the student's application has been approved by the Board, such student licensees enrolled in a program may assist in a licensed embalming establishment under the direct supervision of a licensed embalmer or funeral director.

In order to be eligible for full licensure, a student licensee shall demonstrate that he or she, after completing a funeral service education program, has completed an apprenticeship of no less than 6 months and has personally embalmed at least 25 dead human bodies under the personal supervision of a licensed embalmer. The student licensee shall also have passed the National Board or State Board Arts examination, the National Board Science examination, and the Missouri law examination. A student licensee shall have 5 years to complete the requirements for full licensure under this act. If a student fails to complete the requirements within such period, the student's license application shall be cancelled as described in the act. If the student completes the requirements within 5 years, the student may apply for an embalmer license. No student licensee or embalmer shall be required to sign a death certificate as the embalmer of the body for any body that they have embalmed.

Every person seeking to be an apprentice funeral director shall obtain a provisional funeral director license by submitting an application, paying the application fees, and meeting the qualifications listed in the act, which shall include working as an apprentice funeral director under the personal supervision of a licensed funeral director. An applicant shall have 24 months to complete the requirements or his or her application shall be cancelled.

Every person seeking to be a funeral director shall submit an application, pay the application fees, and meet the qualifications listed in the act, including the successful completion of an accredited program, a course of study in funeral directing, a qualifying apprenticeship of at least 12 months, and passage of the National Board or State Board Arts examination and the Missouri law examination.

Every person seeking to obtain a funeral director limited license shall meet the qualifications as specified in the act and shall not be authorized to practice funeral directing except in an establishment licensed only for cremation and he or she may perform cremations and related duties. A person with a funeral director limited license may obtain a full funeral director's license by meeting the requirements specified in the act.

Beginning November 1, 2021, each licensed funeral establishment shall be a licensed provider for preneed funeral contracts unless a licensee provides written notification to the Board that the licensee does not want to be a provider. No separate application or renewal of the preneed provider license shall be required so long as the funeral establishment license is current and active and records, as specified in the act, are maintained.

These provisions are identical to HB 1349 (2021) and substantially similar to HCS/HB 724 (2021).

TRUSTS (Sections 456.1-114 and 456.4-419)

For the purposes of interpreting a term of familial relationship in a trust, a child conceived or born during a marriage is presumed to be a child of the married persons unless a judicial proceeding is commenced before the death of the presumed parent and it is determined that the presumed parent is not the parent of the child. Additionally, this act provides that a child who is not conceived or born in a marriage is presumed to not be a child of a person who did not give birth to such child unless a judicial proceeding determines such parentage or the person openly recognized the child as his or her child and such person has not refused to voluntarily support the child. A trustee shall not be liable to any person for exercising discretion in regards to the sufficiency of recognition and support of a child unless the trustee acted in bad faith or with a reckless indifference to the purposes of the trust or the interests of the beneficiaries. The rights afforded to the child shall not be retroactive, but shall apply from the time the relationship is established. Finally, a child adopted prior to 18 years of age is a child of the adopting parent and not of the natural parents, except that adoption by a spouse of a natural parent shall have no effect on the relationship between the child and the natural parent. The terms of a trust shall prevail over these provisions.

Under this act, a trustee, other than a settlor, who has discretionary power to make a distribution, may exercise such power by distributing all or part of the income or principal to a trustee of a second trust. The power may be exercised by distributing property from the first trust to one or more second trusts or by modifying the first trust instrument to become one or more second trusts.

This act provides requirements regarding permissible distributees of second trusts, including that at least one permissible distributee of the first trust shall be a permissible distributee of the second trust immediately after the distribution and that only a beneficiary of the first trust may be a beneficiary of the second trust. In addition, this act modifies the use of powers of appointment in the second trust. The second trust instrument may retain, modify, or omit a power of appointment granted by the first trust and the second trust instrument may create a general or nongeneral power of appointment if the powerholder is a beneficiary of the second trust. Furthermore, this act provides that a special-needs fiduciary may exercise the authority to make a distribution to a second trust if the second trust is a special-needs trust that has a beneficiary with a disability and if the fiduciary determines that the exercise of authority will further the purposes of the trust.

The act repeals the current provisions regarding a second trust's beneficiaries, the limitations on a trustee's authority to make distributions from the first trust in certain circumstances, trust contributions treated as gifts, and the exercise of the discretionary power to reduce the income interest of any income beneficiary in certain trusts. The act provides that if the exercise of the distribution authority is limited by an ascertainable standard, under which the trustee exercising such authority is a permissible distributee of the first trust, then the discretionary power shall be subject to at least the same standard as the first trust and the trust instrument for the second trust shall not modify powers of appointment nor grant a power of appointment to a trustee who did not exist in the first trust.

A second trust shall not include or omit terms that would prevent the first trust property from qualifying as a marital deduction, as a charitable deduction, for exclusion from the gift tax, as a qualified subchapter-S trust, or for a zero inclusion ratio for purposes of the generation skipping transfer tax under the Internal Revenue Code. Additionally, if the first trust property includes shares of a S-corporation's stock and the first trust is a permitted shareholder, then the trustee of the first trust may exercise the authority with respect to the S-corporation stock if the second trust is a permitted shareholder.

Currently, a notification must be made at least sixty days prior to making a discretionary distribution to the permissible distributees of the second trust or, if none, then to the qualified beneficiaries of the second trust. This act requires that the notification be made to the permissible distributees of the first trust and to the permissible distributees of the second trust.

The second trust may have a duration that is the same as the first trust. However, the property of the second trust that is attributable to the first trust is subject to the rules governing maximum perpetuity, accumulation, or suspension of the power of alienation which apply to the property of the first trust. The creation of a general power of appointment in the second trust instrument shall not be precluded by this provision.

In the event that part of the second trust instrument does not comply with this act, the exercise of the discretionary power is effective and the provisions of the second trust instrument that are not permitted in or are required to be in the trust instrument are deemed void or included to the extent necessary to comply.

These provisions are identical to SCS/SB 338 (2021) and similar to HB 2533 (2020), SB 418 (2019), and HB 1041 (2019).


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