Blogging Funeral and Cemetery Law: Introduction

The first installment of Funeral and Cemetery Law, the blog version:

Class One: Introduction

There is a lot of administrative stuff to do on the first day of any class—go over the syllabus, etc. But it is also the time to set up the subject matter and the pedagogical approach, i.e. what we're going to learn, how we're going to learn it, and why.  (And I say "we" because teachers almost always learn something new when students dig into and challenge the material of the class.)

Legal Skills

The first thing that I tell students they will learn in Funeral and Cemetery Law is a skill that is essential to being a good lawyer—solving problems in the absence of clear rules. There are many doctrines in F&CL, including statutes and common law rules, and some are clear, but many (most) are not.

The second legal skill that students will practice is reading statutes, individually and in connection with other statutes, and trying to make sense of them. This is a perfect area of law to practice that skill because the state statutes vary dramatically and offer great examples of multiple ways to address the same issue or problem.

Modern American Customs and Practices

I then introduce an overview of the modern customs and practices of American deathcare. The key characteristics are:

• In the United States, the next of kin is typically responsible for the disposition of human remains. This is significantly different from historical practices that assign the obligation to the government or religious community (particularly if there was an established church). When we talk about English law and custom, we can contrast the modern U.S. practice with the historical practices in England.

• As a general rule, the estate of the deceased person is responsible for bearing the cost of the funeral and disposition. The next of kin is not generally obligated to pay even if they have the obligation to carry out the funeral and disposition. If a person dies without an estate, then a wide variety of laws dictate whether the government (typically the local government) pays or whether the remains will be donated to science.

• A licensed, regulated, for-profit funeral director is typically involved shortly after death. The involvement of a funeral director is not required in the vast majority of states, although in some states the signature of a funeral director is required in order to obtain a death certificate or disposition permit. Although not generally required by law, this is a very, very strong cultural norm in the United States.  The fact that funeral directors all work for private, for-profit companies is is somewhat unique. In Vienna, Austria, for example, the local government owns the largest provider of funeral services.

• In the United States, remains are typically embalmed before disposition. This is less true if the remains are to be cremated, but almost always true if there is to be an open casket viewing of the remains. Embalming is not required by any law unless, in some states, the decedent had a particular disease or, in some states, if the remains are to cross state lines.

• After the funeral, Americans choose burial at a rate far greater than Europeans (outside of Orthodox countries) do. The cremation rate in the United States has been and continues to rise rapidly, but we still lag far behind Western European countries.  The cultural shift from burial to cremation has been caused by a number of factors including the cost of burial, increasing secularism, increasing mobility (i.e. families are less likely to all stay in one community for many generations), and the green light that American Catholics received to cremate with Vatican II.  We will talk much more about cremation and the potential impact of cremation rates on the funeral industry in future classes.

• If burial is chosen, in the United States the remains are most likely to be buried in a non-sectarian cemetery owned by a for-profit corporation, a non-profit organization, or a municipality. Since colonial times, America has had far greater variety in cemeteries than Europe, which has traditionally relied on churchyards. Non-sectarian cemeteries have been increasing in Europe but, again, cremation is far more popular than burial there.

• In the United States, human remains are encased in a casket made of steel or wood, then a concrete or steel grave liner or vault. They are placed in a single memorialized grave, dedicated to the individual in perpetuity. This is significantly different than the practices anywhere else in the world and it consumes an incredible amount of land. It is also highly consumptive and the main reason that American funerals are the most expensive in the world.

• We discuss these background principles simply to lay the groundwork for our cultural norms. Throughout the rest of the semester we will look at the historical reasons that we developed these practices, and the way that the law either requires or supports them. At this point, we are not discussing what the law or our practices should be, but simply what they are.

That distinction brings us to the next topic:

What is Funeral and Cemetery Law?

Funeral and Cemetery Law is the body of laws governing the status, treatment, and disposition of human remains in the United States. These laws are scattered throughout common law, federal statutes, state statutes, and local ordinances.  They were not created or envisioned as a single, cohesive set of rules.  Indeed, laws can differ significantly from state to state.  Yet themes run throughout Funeral and Cemetery Law that knit them together and they are most appropriately understood in the context of one another.  I think that Funeral and Cemetery Law attempts to answer three questions:

1.    The first question compels our behavior and requires us to act: What, if anything, must be done with human remains?

2.  The second question constrains our behavior and discourages action: What cannot be done with human remains?

3.  The final question seeks to set normative expectations for our behavior: What should be done with human remains?

These questions are too broad to be useful throughout the class, so I have broken the law down into eight categories that we will study:

1.    The legal status of human remains

2.     The rights of the decedent to determine the place and manner of disposition

3.    The right and/or duty to possess human remains prior to interment (the Right of Sepulture)

4.    The regulation of funeral homes and funeral directors and embalmers

5.    Methods of disposition

6.    Disinterment

7.    The right and/or duty to possess human remains after disposition (the Right of Interment)

8.    The laws governing the dedication and preservation of land holding human remains (i.e. cemetery law)

For the Next Class

Topic: Historical Background, from Roman times through colonial America

Reading: Chapters 1.4, 2.1, 3.1, 4.1, 5.1 and 6.2 of Cemetery Law: The Common Law of Burying Grounds in the United States

Feel free to pose any questions via the comment feature.

Tanya Marsh