California

A Return to At-Home Burial: Funeral Home Start-Ups Embrace a Past Burial Tradition

For the past six or seven decades, funeral homes have been the standard location for conducting funeral rites for loved ones passed. However, this standard practice sometimes prevents the family of the deceased from being involved in the funeral preparations and ritual. Start-ups are trying to change that, mainly by re-introducing and assisting with an age-old type of funeral rites: at-home funerals.

Undertaking LA, a start-up based in Los Angeles, California, is a funeral business that primarily assists clients with at-home funeral and burial preparations. The company was founded by Amber Carvaly and Caitlin Doughty in the summer of 2015, and since then has been an important source information for persons who seek to conduct at-home funerals or burial preparations. The two women have helped answer questions ranging from how to wash and dress a body to how to fill out death certificates and transportation paperwork.

Undertaking LA is just one entity of a group that is trying to make people more aware of the option for home funerals. All but ten states allow for people to conduct their own funerals in the home (in the ten exception states, hiring a funeral director is required). According to Kateyanne Unullsi, a board member of the National Home Funeral Alliance, the positives of a home funeral is that “’[i]t’s more natural. It’s also about reducing cost, but more than anything it’s the need to be more hands-on.’”

Unlike the high standard funeral home price of a funeral (the median cost of a funeral and burial arranged by a funeral home in 2014 was $8,508), the cost of an at-home, self-conducted funeral can be $100 for less. Undertaking LA offers assistance with this do-it-yourself method, but for a small price as compared to funeral homes. For a home funeral service, which includes a three-hour visit, a service fee, and assistance with body preparations, the company charges $996. For a three-hour in-office consultation on how to prepare a body and fill out necessary paperwork, the company charges $30. For a witness cremation, where the family provides the coffin and helps initiate the cremation process at the company’s location, Undertaking LA charges $1,470. The company also provides a small selection of simple coffins for retail, if a family does not provide their own.

Undertaking LA, while unusual as compared to standard funeral homes, operates within the bounds of California funeral law. Besides not requiring persons to hire a funeral director to prepare a body for burial, California law does not require that funeral homes be outfitted with either an embalming room or a coffin display room. In addition, Ms. Carvaly and Ms. Doughty are licensed California funeral directors under the California’s Business and Professions Code, which outlines the scope of what actions a funeral director engages in. While technically funeral directors, Ms. Carvaly and Ms. Doughty merely aid persons with conducting their own independent home funerals by giving advice to families and sometimes providing hands-on assistance with body preparation services.

Undertaking LA seems to have embraced a possible future for the funeral home industry, as many become more frustrated with standard funeral and burial costs. Hopefully, more start-ups across the U.S. (such as this one in Brooklyn) will begin to embrace this cost-friendly, environmentally-friendly, and family-oriented form of funeral rites.

Nina Banfield


Internet Sales of Human Remains Persist Despite Questionable Legality

Conor Gearin recently wrote an article for The New Scientist entitled "Hundreds of mystery human skulls sold on eBay for up to $5500."

The article begins:

A morbid market. Staffers at the Louisiana Department of Justice in Baton Rouge tracked the sale of human skulls on eBay for seven months. During that period, 237 people listed 454 skulls for sale, with opening bids ranging from one cent to $5500.

Until last week, eBay’s official policy as stated on its website was that it doesn’t allow the sale of human remains, with two exceptions – “items containing human scalp hair, and skulls and skeletons intended for medical use”. However, sellers could say that skulls were for medical use without proving it, and still sell them as curiosities, says Tanya Marsh at Wake Forest University in Winston Salem, North Carolina.

Following the study’s publication, eBay recently changed its policy to ban sales of all human body parts except hair.

On average, the opening bids were about $650. Skulls described as pathological – coming from someone with a disease – went for similar prices as other skulls. Specimens cleaned and articulated for teaching started at about $50 more, though.

You can read the rest of the article here.

I checked eBay today and the policy appears to be working - no listings that appear to be for real human skeletons or skulls appear.  However, it is still pretty easy to purchase human remains online.

Skulls Unlimited currently lists 115 products in the category "Real Human Skulls & Skeletons" including 23 human skulls with most prices in the $1,250 - $1,850 range.  A full human skeleton is offered for $5,200.  Skulls Unlimited won't sell human remains to just anybody:

In order to honor the donors who have graciously made this material available to the educational community, Skulls Unlimited will only place these specimens with medical or educational professionals such as college professors, teachers, doctors, nurses, dentists, physical therapists, occupational therapists, respiratory therapists, dental assistants, optometrists, x-ray technicians, ultrasound technicians, crime scene investigators, and lawyers.

The Bone Room currently offers approximately 50 human skulls, including 15 skulls from fetuses, infants, and children under the age of 7.  You can buy a 4 year old child's skull for $3,500, FYI.  But don't worry, The Bone Room says that this is all perfectly legal:

Human Bone Laws & Information - In short, it is perfectly legal to posses and sell human bones in the United States. There are a few exceptions to this: a few states have banned import and export, and of course, all archaeological resources protected by the Native American Graves Protection and Repatriation Act.

Readers are urged to visit the site's "Bone FAQ" page, which offers additional information:

In short, there is no law at the U.S. Federal level prohibiting you from having a human bone in your possession. The fact that some people believe there is or believe there should be such a law is irrelevant.

This is not to say that such laws do not exist in other countries, or at the local level. For example, three US states, New York, Georgia & Tennessee, all have independent State Laws prohibiting the import or export of human remains across their state lines. While we work hard to remain current, laws are passed worldwide faster that the human mind can track or comprehend, so you must be responsible to know your local laws before ordering.

We work within the framework of U.S. Federal, California State, and International Treaty Law. Within these jurisdictions, there are no prohibitions on the sale or possession of human bones.

The Bone Room's FAQ is somewhat correct—there are few laws in the United States that explicitly prohibit the possession and sale of human bones. But that is because the law doesn't distinguish between intact human remains and human bones.  The bigger problem that the sellers of human bones have (particularly since both Skulls Unlimited and The Bone Room have pages on their sites offering to purchase human bones) is that there is no way in the United States to legally transform intact human remains into human bones. 

When a person dies in the United States, the state must be informed and a death certificate issued.  Prior to final disposition of the remains, another certificate, usually called a burial and transit permit, must also be issued by the state. There are particular rules regarding the treatment and disposition of those remains.  For example, in no state is it permissible to transform intact human remains into a skeleton.  The Bone Room specifically references California law in its FAQ, presumably because it is located in California.  It may be interested in this California law:

“Except as authorized pursuant to [§§ 7054.6, 7116, 7117, and 103060], every person who deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor.” Cal. Health & Safety Code § 7054.

I'm not their lawyer, but that statute doesn't seem consistent with the idea that it is "perfectly legal" for them to possess human remains in California. 

Tanya Marsh

 


Unfortunate Mix-Up at Cemetery Leaves Family with Difficult Decision

In Fresno, California, a family was horrified to learn that the cemetery plot they had reserved next to their recently-buried newborn son actually belonged to someone else.  David Miranda lost his newborn son only eight hours after the child was born due to a fatal disorder discovered before the baby was born. Mr. Miranda made cemetery arrangements for his son in a local cemetery and also reserved the plot next to his son for himself and his fiancé. Mr. Miranda was given a reservation slip by the cemetery office and told his first payment would be due in mid-November. When Mr. Miranda came in at the end of October to make his first payment, cemetery officials told him that there had been a mistake. The plot Mr. Miranda reserved had actually been sold to another family three days prior. The salesperson who made the sale to the other family had recorded the sale in the cemetery’s computer system, but had failed to record the sale on the cemetery map.  The cemetery officials offered the couple two options: choose plots near, but not next to, their son or have their son disinterred and moved to another spot with an adjacent available plot.  Mr. Miranda and his fiancé are dissatisfied with both.

Buying a cemetery plot is not the same as buying other real property. The real property is still owned by the cemetery, but a purchaser gains title to use that specific plot of land for a specific purpose – burial. Many of these documents look like traditional deeds, but include a list of restrictions for what can be done on the property. The most important of those restrictions is obviously limiting its use to burial, but it can also include certain restrictions about what can be done above ground to the property in conformance with cemetery rules.

In terms of priority of property interest, California is a race-notice jurisdiction. This means that the subsequent interest of a bona fide purchaser achieves priority over a prior interest where they acquire a subsequent interest in the property for valuable consideration and in good faith and records the instrument creating the interest first. A bona fide purchaser is a purchaser who acquires a lien or title interest in good faith and for value (not a gift) without knowledge or notice of a prior interest. Assuming the recording of the interest on the cemetery map counts as recording for property purposes, had the cemetery official gone ahead with accepting Mr. Miranda’s payment and recording the interest on the cemetery map, Mr. Miranda’s rights to the plot would trump the rights of the prior purchaser. Because we want to encourage recording, race-notice jurisdictions favor the interest of the innocent subsequent purchaser who properly records their deed over the negligent prior purchaser who failed to record.

We often forget that, at the end of the day, cemeteries are real property. Although the ownership interest acquired in a cemetery plot is not the same as the ownership interest acquired by a purchaser of other real property, cemeteries are real property and those rules do still apply. While these rules did not save Mr. Miranda from this tragic situation, they could be applied to other bona fide purchasers who are able to record their interest.

Brandy Davis


A Prime Time Network TV Show About ... Necrophila? Wicked City premieres Oct 27

Wicked-city-ed-westwick-posters

This is not a blog about pop culture (been there, done that), but I have been itching to post about Wicked City since I first saw the first teaser promo in May and now that the promos are in heavy circulation and the premiere date approaches, it is time.

Continue reading "A Prime Time Network TV Show About ... Necrophila? Wicked City premieres Oct 27" »


Not a nuisance, but perhaps a taboo?

Common law is very clear that cemeteries are not a nuisance per se.  This means that as long as it is permitted by applicable zoning and other land use laws, neighbors cannot block the development of a cemetery.  A proposed 100,000 plot cemetery on 60 acres in San Ramon, California, however, raises an interesting issue.  Many of the residents in the surrounding area are "are natives of China and India who believe that living near a cemetery — even one that would not be visible from their homes — is taboo." 

“We really are affected mentally and psychologically,” said Angappa Murali, a software engineer at Hitachi Data Systems who is from India. “Most of us are immigrants,” he said of his neighbors. “We still have spiritual connections.”

In light of the cultural prohibitions on living near a graveyard shared by many in the San Ramon community, should courts re-evaluate the common law rule? 

It is important to note that nobody particularly enjoys living next to a graveyard.  Since Roman times, graves have generally been located on the outskirts of populated areas.  Although the focus of European Christian burial was in churchyards, a tradition which was followed in colonial times and is still followed in many parts of the United States, American cities like New York, Chicago, and San Francisco have been exiling cemeteries for centuries.  The common law rule that cemeteries (and funeral homes) are not a per se nuisance is not because of their wide acceptance by neighbors.  In 1917, the Supreme Court of Michigan considered an effort by neighbors to halt the construction of a funeral home in Lansing:

We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person.  Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person.  Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance.  … [This] is a matter of common knowledge.  The constant going and coming of the hearse … the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs; … the unknown dead in the morgue; … the thought of autopsies of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman – all of these are conducive to depression of the normal person; each of these a constant reminder of mortality.

Saier v. Joy, 164 N.W. 507 (Mich. 1917).  The neighbors in the modern San Ramon case offer similar objections:

Jay Yao, who emigrated from China, is the chief organizer of the cemetery opponents and says funerals would cast a pall on the community. “They will be forcing kids to see funeral processions,” said Mr. Yao, a vice president of quantitative research at Morgan Stanley Capital International. “Children didn’t do something wrong — why do they have to see it at such an early age?”

Community officials in San Ramon appear to think that the "Chinese and Indian residents with spiritual or cultural objections" to the cemetery are raising new issues.  They are not.  As the Supreme Court of Michigan so colorfully opined in 1917, everyone finds cemeteries depressing.

Tanya Marsh


Mickey Rooney's family feuds over funeral and burial

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Screen legend Mickey Rooney (shown above with Elizabeth Taylor in "National Velvet") passed away at the age of 93 on April 6, 2014.  Estranged from his eighth wife, Jan Chamberlin, Rooney had been living with his stepson, Mark Rooney, and wife Charlene for two years.  He died in their home and his body was taken to the funeral home at Forest Lawn cemetery.  According to the Los Angeles Times, here's what happened next:

After his death, his wife, Jan Chamberlin, and her son, Christopher Aber, contacted Forest Lawn and tried to move Rooney's body against his expressed wishes, [Michael] Augustine [Rooney's conservator sine 2011] alleged in court papers filed Tuesday morning.

Charlene Rooney said she and Mark received a call from Forest Lawn about the attempt a few hours after Rooney's passing.

"Mickey was not even gone for a few hours, he had just left here on a gurney, and this ugliness started," she said. "Mickey hasn't even seen or spoken to Jan in two years, Chris in almost three years."

Yevgeny Belous, one of Chamberlin's attorneys, said his client simply wanted to give Rooney a "befitting" burial.

"It's Mickey Rooney, after all," he said. "Everyone involved wants to make sure Mickey is honored, and we don't want to spend unnecessary time and effort in a court fight."

Chamberlin and Aber believe Rooney's wishes were to be interred at a Westlake Village cemetery alongside a plot for Chamberlin, said John O'Meara, an attorney for Aber and his wife, Christina.

Augustine, who has Mark and Charlene's support, said Rooney had told him he wanted to be buried at a veterans cemetery or alongside other film stars at a Hollywood one.

Bruce Ross, an attorney for Augustine and Rooney's estate, said Rooney had chosen to separate from his wife while he was living and would not have wanted to be buried next to her.

"They had agreed to live permanently apart. It would be a shame if now that he's died, they were reunited," he said.

O'Meara, Aber's attorney, said Tuesday that his client was only looking after the best interests of his mother, who legally remained Rooney's wife.

"Chris stands with his mother, wants what's best for his mother: to be buried next to her husband of many years," O'Meara said. "It's wildly offensive to keep Mickey Rooney's wife away from the process of burying her husband."

The fact that Rooney's wife and stepson are in court suggests that Rooney failed to take advantage of California Health and Safety Code Section 7100.1, which permits a decedent to leave written instructions regarding the disposition of his remains and the funeral goods and services to be provided.  If he failed to leave written instructions or execute a health care power of attorney that addressed the rights to disposition, then it is likely that under California Health and Safety Code Section 7100, his wife will ultimately prevail, regardless of Rooney's wishes.  Although some states do not permit the surviving spouse to take control of the remains if they were separated from the decedent, California has no such exception.  If Ms. Chamberlin did not prevail, however, Rooney's stepson still wouldn't be next in line.  Instead, the majority of his competent adult children would be permitted to control his remains.  Rooney was estranged from most of his nine children, including Aber.

This sad case illustrates once again that people, especially those with complicated family situations, should make their funeral and burial preferences known prior to death, in accordance with the law.  It is in no one's best interests to have these disputes resolved in court while the decedent's remains lie at the funeral home.

Tanya Marsh