Funeral Service Law
Sources and hierarchy
Know the sources of law: constitutional, statutory, administrative (agency regulations), and case (common) law. Federal law and state law both apply; where a state rule is stricter than the federal rule, the stricter standard generally governs in practice. The FTC Funeral Rule is a federal trade regulation rule; licensing, right of disposition, permits, and preneed funding are governed primarily by state statute and state board rules.
Core areas to master
- Right of disposition and custody - statutory priority lists that determine who controls final disposition; these vary by state and may be modified by a written designation.
- Contracts - offer, acceptance, consideration, capacity, legality; minors; preneed contracts and trust funding.
- Permits and records - death certificate filing timelines, burial-transit permits, cremation authorizations.
- Negligence - duty, breach, causation, damages.
- Bailment - the funeral home as bailee of personal property and valuables.
- Licensure and discipline - grounds for suspension or revocation.
Traps
- Assuming a single national order of right of disposition.
- Mixing the civil standard (preponderance) with the criminal standard (beyond a reasonable doubt).
- Assuming an unpaid bill automatically authorizes indefinite retention of remains; many states restrict this, so know your jurisdiction.
- Forgetting that a signed authorization may override a default statutory order.
Rule of thumb
For any legal scenario ask three questions: Who has legal authority over the remains? What document or permit is required? What does the signed contract say?