Privacy for the Deceased: Law Provides Limited Protection

Suppose your father, an intensely private person, dies as the result of a bizarre murder-for-hire scheme.

The press is everywhere, demanding family public statements, autopsy results and funeral arrangements.   Some fanatic even sends out a tweet soliciting protestors for your father’s graveside service.

You wonder what you can do to secure your father’s privacy after death.

The answer starts with the general principle that a person’s right to privacy lapses at his death.  Any protections have to, therefore, be affirmatively given.

Texas has a few laws in your favor.

Funeral arrangements and disposition of his remains may be private.  If your father left a signed appointment of agent and instructions, then the agent can carry those out.  If your father did not leave such a document, then the statute determines the priority of persons to make the decisions.  Those people may, or may not, take steps to protect your father’s privacy.

If you are the agent, then you may decide to have a private ceremony.  Be aware that some places of worship welcome everyone to attend a service and will not allow you to limit those attending.    If you hold it in a private location, such as a funeral home, then you should be able to restrict certain people from being there.  You may need to arrange for law enforcement or security guards.

If you bury him in a public cemetery, then anyone can attend.

Choose a private cemetery instead and you can keep people out.

Before the funeral, however, an inquest is required under these circumstances.  The Justice of the Peace or the medical examiner has authority over your father’s body to conduct the inquest.  The inquest is a public proceeding.

As to the idiot who solicited protestors, you do have some protections.  Funeral picketing is a Class B misdemeanor if done within 3 hours before or after the service.

It will be difficult to protect your father’s privacy through an obituary for the simple reason that anyone can write one.  There may even be dueling obituaries, as happened when a Houston man died leaving both a girlfriend and a wife.  They each wrote an obituary and the newspaper obligingly published them side by side in the funeral section.

Crime scene and autopsy reports are generally confidential but autopsy reports are not.  Birth certificates become public after 75 years and death certificates become public after 25 years.

No one, especially a family member, is obligated to give a public statement.  The family may want to hire a public relations firm or appoint a spokesperson to represent them.

As to the internet and your father’s digital life, his personal representative (appointed during the probate process) can access but not control them.

Regarding your father’s estate, if he had everything funded into a trust then his assets will most likely pass without public scrutiny.  If he left a will or died without a will, then there will be a public probate proceeding.

Private person, public death: not a good mix.

Virginia Hammerle is a licensed Texas attorney.  Her practice includes estate planning, litigation, guardianship, and probate law.  See hammerle.com for her blog and newsletter sign-up.  This column does not constitute legal advice.