Funeral Poverty

University of Richmond Law Review University of Richmond Law Review

Volume 55 Issue 2 Article 2

1-1-2021

Funeral Poverty Funeral Poverty

Victoria J. Haneman

Creighton University School of Law

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Victoria J. Haneman,

Funeral Poverty

, 55 U. Rich. L. Rev. 387 (2021).

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HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

387

ARTICLES

FUNERAL POVERTY

Victoria J. Haneman

NTRODUCTION

Death is an expensive proposition.

The economics of life do not

end with death, and putting the deceased to rest carries (often un-

expected) funerary expenses for cremations, funerals, burials,

and/or memorials. In 2019, the median cost of an adult funeral

with viewing and burial exceeded $9000.

This number is particu-

* Frank J. Kellegher Professor of Trusts & Estates, Creighton University School of

Law. I would like to thank Tiffany Graham (Touro), Marc L. Roark (Southern University),

Katherine Macfarlane (Idaho), Carla Spivack (Oklahoma City), Paul E. McGreal

(Creighton), John Linarelli (Touro), and Caitlin Doughty for feedback, guidance, and en-

couragement. Special thanks to Troy C. Johnson, Director of the Creighton Law Library,

who has always been amazingly supportive of my research needs. Director Johnson was

particularly accommodating and accessible when COVID-19 abruptly closed the school. Fi-

nally, my heartfelt gratitude to research assistants Sarah K. Mielke and Thomas R. Norvell

for attention to detail and impressive editing skill.

1. “Death is expensive, Miss Stella!” speaks character Blanche DuBois. T

ENNESSEE

WILLIAMS, A STREETCAR NAMED DESIRE sc. 1.

2. Excluding cemetery costs, the median cost of an adult funeral with viewing and

burial was $7640 and the median cost of an adult funeral with viewing and cremation was

$6645. 2019 NFDA General Price List Study Shows Funeral Costs Not Rising As Fast As

Rate of Inflation, N

AT’L FUNERAL DIRECTORS ASS’N (Dec. 19, 2020), https://www.nfda.org/

news/media-center/nfda-news-releases/id/4797/2019-nfda-general-price-list-study-shows-fu

neral-costs-not-rising-as-fast-as-rate-of-inflation [https://perma.cc/8NCY-4Y8R]. The cost of

an adult funeral and cremation without a cremation casket or urn is $5150. Cemetery costs

vary dramatically based upon location. It is estimated that the average American funeral

with burial comes exceeds $9000. C

YNTHIA WILLIAMS RESOR, DISCOVERING QUACKS,

UTOPIAS, AND CEMETERIES: MODERN LESSONS FROM HISTORICAL THEMES 106 (2019); see

also Lisa Dingman, Rest in Peace: 10 Expensive Locations to Lay Down the Dead,

HERICHEST (Jan. 4, 2014), https://www.therichest.com/most-expensive/rest-in-peace-10-

expensive-locations-to-lay-down-the-dead/ [https://perma.cc/N395-WQ95] (noting that in

2009, Westwood Village Memorial Park in Los Angeles sold a crypt on eBay for $4,602,100).

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388 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

larly stark given that four out of ten Americans would have diffi-

culty covering an unexpected $400 expense, and 12% would be un-

able to pay the unexpected $400 by any means.

Although there

are ways in which the consumer may mitigate cost, planning for a

funeral or burial is expensive and complicated, and the consumer

is frequently inexperienced and vulnerable.

For the average consumer, funerary expenses

will be the third-

largest category of expense incurred over a lifetime

—and notably,

this category of expenditure is often managed during an emotion-

ally fraught time when the consumer may be cognitively impaired.

A grief-stricken consumer is not a rational actor. This consumer is

not price sensitive and is generally aware of only those prices and

options

made available by the first funeral home consulted.

And

though pre-need planning and prepayment would facilitate in-

formed decision-making and purposeful saving, the options for pre-

need prepayment are severely limited, with disadvantages that

frequently outweigh benefits.

3. BD. OF GOVERNORS OF THE FED. RESERVE SYS., REPORT ON THE ECONOMIC WELL-

EING OF U.S. HOUSEHOLDS IN 2018, at 21 (2020) [hereinafter FED REPORT].

4. As used in this Article, “funerary expense” is interchangeable with “death service

expense” and refers to expenses arising in any one of five primary areas: (1) funeral homes,

(2) pre-need sales, (3) third-party vendors of goods, (4) crematories, and (5) cemeteries. Ste-

ven W. Kopp & Elyria Kemp, The Death Care Industry: A Review of Regulatory and Con-

sumer Issues, 41 J.

CONSUMER AFF. 150, 151 (2007).

5. The third-largest expense after home and automobile purchase. Steven W. Kopp &

Elyria Kemp, Consumer Awareness of the Legal Obligations of Funeral Providers, 41

CONSUMER AFF. 326, 326 (2007). The price for funerals and burials in the United States has

risen 227.1% from 1986 to 2017, as compared to 123.4% for all consumer items. B

UREAU OF

LABOR STATISTICS, The Rising Cost of Dying, 1986–2017, U.S. DEP’T LAB. (Oct. 31, 2017),

https://www.bls.gov/opub/ted/2017/the-rising-cost-of-dying-1986-2017.htm [https://perma.c

c/9GLY-YQHJ].

6. See Natasha Bernal, Would You Be Buried in a Fungus Suit? Tech’s Making Funer-

als Weird, WIRED (Jan. 8, 2020), https://www.wired.co.uk/article/funeral-directors-technolo

gy [https://perma.cc/A9V6-W6PL] (stating that, in the U.K., “[T]he average family falls into

£1,600 debt to cover funeral costs, often taking payday loans to cover the expense.”).

7. Id. (“Your funeral director won’t tell you a green burial will save you two-thirds

of the cost, or that the expensive shiny brass coffin handles you paid extra for will be

thrown in a tub and sold as scrap metal . . . .”).

8. Kelli B. Grant, Amid the Tears, Don’t Overpay for Funeral Costs, CNBC (Sept. 27,

2016, 1:57 PM), https://www.cnbc.com/2016/09/22/comparison-shopping-funeral-costs-can-

yield-big-savings-.html [https://perma.cc/6G5E-LKEM] (noting that this behavior is unu-

sual for a large purchase; “[m]ost people go to the same funeral home their family has always

used, and just say ‘yes’ to everything . . . .”).

9. See, e.g., Ron Burley, Prepaid Funerals: A Grave Error?, AARP, https://www.aarp.

org/money/scams-fraud/info-12-2011/prepaid-funerals-grave-error.html [https://perma.cc/Z

Z9F-ZVD6].

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It is important to consider the way in which unremarkable, mun-

dane, unconsidered expenses perpetuate inequality and contribute

to intergenerational cycles of poverty, and this issue has been here-

tofore relatively unexplored by the legal academy in the context of

death service expenses.

And though the topic of funeral poverty

is rarely discussed in the United States, it has been a trending is-

sue in many other parts of the world.

In the United Kingdom,

was raised before Parliament.

In South Africa, economists found

that the households studied between 2003 and 2005 spent an av-

erage of a year’s income (measured at median per capita African

income) for an adult’s funeral, leaving poor households in a state

of extreme hardship.

Scotland implemented a funeral expense as-

sistance program with eligibility for those with low incomes, with

an average subsidy of £1372 in 2017/2018.

And notably, the Swe-

dish have preempted the need to have any conversation: all resi-

dents are entitled to burial services and charged a mandatory

scaled fee for expenses on the resident’s annual tax statement,

10. Noting the “majestic equality of the laws, which forbid rich and poor alike to sleep

under the bridges, to beg in the streets, and to steal their bread,” Anatole France illustrates

that the law, though equal in applicability, imposes disparate burdens on the rich and the

poor. A

NATOLE FRANCE, THE RED LILY 95 (Winifred Stephens trans., 6th ed. 1922) (1894).

11. See, e.g., What Is Funeral Poverty?, F

AIR FUNERALS CAMPAIGN, https://fairfunerals

campaign.org.uk/content/what-funeral-poverty [https://perma.cc/QJF9-RA5V] (“Funeral

poverty is where the price of a funeral is beyond a person’s ability to pay.”).

12. Bridget McCall, Funeral Poverty: Speaking Truth to Power, T

URN2US (Feb. 12,

2019), https://www.turn2us.org.uk/About-Us/News/Funeral-poverty-Speaking-truth-to-pow

er [https://perma.cc/CY7V-HPSW] (noting the 2014 Fair Funerals campaign pushed for a

politically coordinated approach to tackle the issue of funeral poverty, which brought about

the Work and Pensions Select Committee’s 2016 inquiry into the issue; an initiative that

called for standardized pricing format for funeral costs (with pricing caps)).

13. Harriet Sherwood, Church of England Could Seek to End Paupers’ Funerals,

UARDIAN (Jan. 26, 2020), https://www.theguardian.com/society/2020/jan/26/church-of-engl

and-could-seek-end-paupers-funerals [https://perma.cc/B2PD-PFBQ] (“[T]he Labour MP

Emma Lewell-Buck told the Commons in 2018: ‘Around a quarter of families that cannot

afford funerals borrow from friends or relatives, a quarter put costs on a credit card, and

the rest take out loans or work out an instalment plan with funeral directors. Some even

sell their belongings. It has been revealed recently that people are increasingly turning to

crowdfunding websites to raise money for funerals.’”).

14. Anne Case, Anu Garrib, Alicia Menendez & Analia Olgiati, Paying the Piper: The

High Cost of Funerals in South Africa, 62 E

CON. DEV. & CULTURAL CHANGE 1, 2 (2013).

15. See generally The Funeral Expense Assistance (Scotland) Regulations 2019, (ASP

292); Funeral Expense Assistance, G

OV.SCOT (Jan. 18, 2019, 12:17 PM), https://www.gov.sc

ot/news/funeral-expense-assistance/ [https://perma.cc/B3MA-MHXH] (noting these pay-

ments have three elements: (1) cost of burial or cremation, (2) flat rate payments for other

funeral expenses such as flowers, and (3) some transport costs).

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390 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

with financial assistance (if needed) from the municipal social ser-

vices office.

In the United States, we are extraordinarily distanced from

death and have largely moved the process from home to institu-

tion.

After the Great Depression and World War II, life expec-

tancy increased and death became taboo.

Modern society shifted

death out of sight and mind, railing against aging, whisking the

dying to hospitals, removing the deceased to funeral homes, and

purchasing meat for consumption.

This sheltering from the or-

ganic and necessary end of the life cycle has created a “death illit-

eracy” that renders the consumer particularly vulnerable to foolish

decision-making and exploitation while planning a funeral and/or

burial.

Important conversations about end-of-life planning, the

responsibility to pay for one’s own funerary expenses, the notion of

planning for inexpensive, simpler options, and meaningfully ad-

dressing funeral poverty are all ideas generally without traction in

the United States. The consumer cloaks himself in the illusion of

immortality and end-of-life planning threatens that illusion.

This Article makes a unique contribution to the literature by

drawing attention to the financial burden of death service being

shouldered by those who are “relatively poor,” or those for whom

everyday life may be a financial struggle.

The thesis is equal

16. See About Funerals in Sweden, SWEDEN’S AUTHORIZED FUNERAL SERV., https://

www.begravningar.se/about-funerals-sweden [https://perma.cc/U2FV-DJAS]. See generally

VENSKA KYRKAN [CHURCH OF SWEDEN], OM BEGRAVING [ABOUT FUNERALS, BURIALS AND

CREMATIONS] (2d ed. 2013), https://www.svenskakyrkan.se/Sve/Binärfiler/Filer/Om%20be

gravning%20engelska.pdf [https://perma.cc/C9BM-3YXQ]. The average cost of a funerary

service in Sweden is SEK 25,000 (as of 2014), which is equal to U.S. $2669.

17. C

OMM. ON CARE AT THE END OF LIFE, APPROACHING DEATH: IMPROVING CARE AT THE

END OF LIFE 39 (Marilyn J. Field & Christine K. Cassel eds., 1997).

18. See Sara Marsden-Ille, Funeral Poverty in the 21st Century, U.S.

FUNERALS ONLINE

(Oct. 29, 2014), http://www.us-funerals.com/funeral-articles/funeral-poverty-in-the-21st-cen

tury.html [https://perma.cc/28BA-KEQS].

19. See Jen Ortiz, The Women Who Love Death, MARIE CLAIRE (Oct. 31, 2016), https://

www.marieclaire.com/culture/a22236/women-in-death-positivity-movement/ [https://perm

a.cc/EH56-9EGY] (“Without a regular face-to-face relationship with death, we’ve developed

an aversion to the subject entirely.”).

20. See Sarah Chavez, The Story of Death Is the Story of Women, YES!

(Aug. 22, 2019),

https://www.yesmagazine.org/issue/death/2019/08/22/dying-feminist-funeral-women-caitlin

-doughty/ [https://perma.cc/4GCS-RVR5].

21. Marsden-Ille, supra note 18 (“When I started 40 years ago people were more aware

of their own mortality. People had their own policies, people had insurance or they put

money aside. They understood that they were going to die. I don’t know if we are wrapped

up in immortality, but people don’t think about it now.”).

22. As compared to a discussion of those who are the absolute poor, which is “a grim

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parts positive, normative, descriptive, and prescriptive: it is imper-

ative that options be made available to transition human remains

in a way that does not exacerbate cycles of poverty and allows for

the living to preserve dignity.

This need calls for important

changes to existing legal structures, including modernization of

consumer protection regulation, change to laws regulating the

death service industry, and recharacterization of expenses for tax

purposes. An overview of the death industry in the United States

is explored in Part I, as a discussion of casket versus cremation as

the path most followed. Part II traces the underlying economics of

“shuff[ling] off this mortal coil” in the United States, and the lim-

ited options (beg, borrow, surrender) that are available to assist

the struggling consumer.

The structure of any marketplace influ-

ences consumption, and Part III considers gaps in marketplace reg-

ulation that highlight or exacerbate structural features such as un-

certainty of need, information asymmetry, vulnerability of the

consumer, and inelasticity of the marketplace. Part IV considers

the multifaceted issue of funeral poverty and the potential long-

term implication of these extraordinary expenses upon families.

The Article concludes with a cohesive framework of solutions re-

sponsive to the unique structural features of the death services

marketplace, by which funeral poverty issues may be comprehen-

sively addressed in the United States.

reality for those living in the so-called ‘developing world,’ where daily suffering and death,

as a result of malnutrition, diseases contracted through exposure to contaminated water,

and conflict, are commonplace.” Caroline Squire & Kate H. Beverley, Women, Poverty and

Childbirth, in T

HE SOCIAL CONTEXT OF BIRTH 41 (Caroline Squire ed., 2d ed. 2009). The

relatively poor find themselves economically excluded from participation in various aspects

of life enjoyed by the majority, with such exclusions being accompanied by varying levels of

shame and powerlessness that are often not insignificant. Id. The relatively poor suffer

(sometimes small) deprivations because of economic insecurity—perhaps lacking safe or ad-

equate housing or healthy food. Id.

23. See, e.g., Corey Williams, Paying for Funerals Impossible for Many Poor Families,

ABC NEWS (Jan. 20, 2019, 11:31 AM), https://abcnews.go.com/US/wireStory/paying-fun

erals-impossible-poor-families-60505937 [https://perma.cc/4HHG-ZGTK]. (“People who

can’t afford [funerals] . . . may simply abandon relatives’ remains altogether, leaving it to

coroners and funeral homes to pay for cremation and disposal.”).

24. W

ILLIAM SHAKESPEARE, HAMLET act 3, sc. 1 (“Devoutly to be wish’d. To die, to sleep;

To sleep, perchance to dream . . . . For in that sleep of death what dreams may come, When

we have shuffled off this mortal coil, Must give us pause, there’s the respect, That makes

calamity of so long life.” (emphasis added)).

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392 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

MODERN FUNERARY PRACTICE IN THE UNITED STATES

Death was an everyday part of life for Americans prior to the

Civil War. Infant mortality rate (“IMR”) was over 100 per 1000 live

births, and life expectancy did not extend far beyond one’s late thir-

ties.

Families would prepare their own deceased, and home fu-

nerals were a norm.

A funerary cultural shift occurred because of

the Civil War, when over 600,000 men died on the battlefield and

families wanted the remains of the dead soldiers shipped home.

Embalming became necessary for preservation of those not imme-

diately laid to rest, and it required a set of specific skills that gave

rise to an entire profession.

American funeral custom shifted

from modest home funerals

to more costly professionally orga-

nized events at full-service funeral homes.

Part I of this Article

provides an overview of modern burial and funeral practice in the

United States, as well as the choice between casket or cremation.

A. Modern Burial and Funeral Custom

In the United States, traditional modern funeral and burial

practice varies dramatically based upon religious preferences. Bur-

ial has been the normative path for those of Christian faiths,

25. See generally Clayne L. Pope, Adult Mortality in America Before 1900: A View from

Family Histories, in S

TRATEGIC FACTORS IN NINETEENTH CENTURY AMERICAN ECONOMIC

HISTORY 267, 267, 276–77 (Claudia Goldin & Hugh Rockoff eds., 1992) (noting American

IMR’s dramatic decrease from “above 100 per thousand at the turn of the century to the

current level of about 10 per thousand” as of 1992). As to adult mortality rates, “[t]he Civil

War years were marked by very high mortality rates for both men and women.” Id. at 281.

26. Funeral preparations in the 19th Century consisted of women caring for the body

while the men dug the grave. Maggie Jones, The Movement to Bring Death Closer, N.Y.

TIMES, Dec. 19, 2019, (Magazine), https://www.nytimes.com/2019/12/19/magazine/home-fu

neral.html [https://perma.cc/2VUG-SCPA]. Loved ones would sing songs and pray at the

bedside of the deceased, “while the children came and went, unshielded from the inevitabil-

ity of death and decay.” Id.

27. See id.

28. Vanessa Quirk, “We’ve Mastered Weddings—But the Funeral Needs a Lot of Work”:

Inside the New Death Industry, Q

UARTZ (Apr. 4, 2017), https://qz.com/948857/funeral-hom

es-and-the-death-industry-are-undergoing-radical-shifts-toward-diy-death/ [https://perma.

cc/K99Q-GHRE].

29. Id. (“By the 1920s, more and more people lived in small urban apartments and died

in hospitals. As a result, the funeral home started to become a more popular option for pay-

ing respects to the dead.”).

30. David Foos, State Ready-to-Embalm Laws and the Modern Funeral Market: The

Need for Change and Suggested Alternatives, 2012 M

ICH. ST. L. REV. 1375, 1376.

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though some churches will make allowances for cremation, and fu-

neral attendees customarily wear black.

Cremation is preferred

for Buddhists, with funeral attendees customarily wearing white.

Jewish people generally prefer not to be cremated, and a Jewish

burial is a unique combination of custom (“minhag”) and command-

ment (“mitzvah”).

The deceased is usually interred in a simple

wood box as soon as possible after death.

Similarly, Muslim tra-

ditions also require that the decedent be buried as soon as possible

after death.

Those who are unchurched and highly secular

(roughly one-third of the nation’s adult population)

may opt for a

secular or non-religious event that focuses on a celebration of life.

Though function and form of the funerary process varies because

of religious affiliation or lack thereof, it is useful to consider the

process as having three distinct stages: the pre-funeral phase, the

funeral phase, and the burial site phase. The pre-funeral phase

usually involves a visitation, viewing, or wake that takes place

prior to the funeral. The visitation, viewing, or wake provides an

31. See Joe Carter, The FAQs: What Christians Should Know About Cremation, GOSPEL

COALITION (Sept. 20, 2017), https://www.thegospelcoalition.org/article/the-faqs-what-chris-

tians-should-know-about-cremation/ [https://perma.cc/L83R-MUUJ] (“For Christians, bur-

ial is not the disposal of a thing. It is caring for a person.”); see also Timothy George, Cre-

mation Confusion: Is It Unscriptural for a Christian to Be Cremated?, C

HRISTIANITY TODAY

(May 21, 2002), https://www.christianitytoday.com/ct/2002/may21/27.66.html [https://per

ma.cc/9RMF-FQMC] (“As Jesus himself was buried and raised bodily from the dead, so

Christians believed that their burial was a witness to the resurrection yet to come.”). Tra-

ditional black funeral garb remains commonplace in American society. See, e.g., Andre Lam-

bertson, Sometimes Miracles, 86 V

A. Q. REV. 133, 134 (2010) (lamenting the frequency of

youth funerals in inner-city Baltimore, observing, “[Y]oung people in [the] neighborhood had

grown accustomed to seeing death’s face up close. Visiting their friends in funeral homes

had become a macabre social outing—just one more party to dress up for, another occasion

to wear black.”).

32. See

BUDDHIST FUNERAL CULTURES OF SOUTHEAST ASIA AND CHINA 27, 79, 88 (Pa-

trice Ladwig & Paul Williams eds., 2012).

33. Religious Traditions: Judaism Funeral Customs, F

UNERAL SOURCE, https://thefune

ralsource.org/trad0203.html [https://perma.cc/C4DC-KMG2].

34. See, e.g., Jewish Funerals Guide, B

URIALPLANNING.COM, https://www.burialplann

ing.com/resources/religious-funerals-guide/jewish-funerals-guide/ [https://perma.cc/6NX6-

WL9P].

35. Rema Rahman, Who, What, Why: What Are the Burial Customs in Islam?, BBC

NEWS (Oct. 25, 2011), https://www.bbc.com/news/magazine-15444275 [https://perma.cc/3Q

36-LSXV].

36. Five Trends Among the Unchurched, B

ARNA (Oct. 9, 2014), https://www.barna.com

/research/five-trends-among-the-unchurched/ [https://perma.cc/XK6E-8HJV].

37. Olivia Waring, What Is a Humanist Funeral? Dale Winton to Be Laid to Rest at Non-

Religious Service, M

ETRO (May 22, 2018, 1:03 PM), https://metro.co.uk/2018/05/22/humani

st-funeral-dale-winton-laid-rest-non-religious-service-7568038/ [https://perma.cc/7UHV-5F

VU].

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394 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

opportunity for the attendees to approach the deceased to say good-

byes and pay respects to survivors.

In some cultures, a wake is a

lighthearted, uproarious celebration of life.

While wakes may be

held in a residence or funeral home, visitations and viewings are

generally held in a funeral home and can be somewhat more som-

ber than a wake.

When the deceased is displayed for viewing, the

remains have usually been preserved through an embalming pro-

cess and cosmetics have been applied.

The funeral phase often involves a funeral service that takes

place either at a funeral home or a religious facility. A funeral is a

formal ceremony that is connected to the disposition of human re-

mains, and unlike a memorial service, the remains are usually pre-

sent.

These ceremonies are generally intended to honor the de-

ceased and involve religious rites or prayers. It is common for

specially selected pallbearers to be honored with the task of carry-

ing the casket from the funeral service to the vehicle that will be

leading the procession either to the burial site or the crematorium.

In the burial site phase, the procession of mourners may travel

from the location of the funeral to a designated burial site—which

may take the form of a grave, tomb, or mausoleum in a cemetery.

If the deceased was cremated following the funeral, the cremated

remains or “cremains” may be brought at some later time by loved

ones to a cremation niche, bench, or mausoleum.

It is common for

38. History and Customs, NAT’L FUNERAL DIRECTORS ASS’N, https://www.nfda.org/cons

umer-resources/why-a-funeral/history-and-customs [https://perma.cc/Z78Q-GC32].

39. For example, “lift the corpse” is one of the most popular games frequenting Irish

wakes. Brian O’Connell, Lifting the Lid on Irish Wakes, I

RISH TIMES (Mar. 25, 2009), https://

www.irishtimes.com/culture/lifting-the-lid-on-irish-wakes-.729881 [https://perma.cc/HT9Z-

WP56]. “‘[L]ifting the corpse’ involve[s] a stout man lying on the floor and attempting to lift

a body representative of the corpse.” Id. (noting the 20th Century’s resurgence of Irish fu-

neral games, as the comedic customs continue their comeback).

40. Wake vs. Viewing vs. Funeral: What’s the Difference?, B

URIALPLANNING.COM, https:

//www.burialplanning.com/resources/funeral-etiquette-guide/wake-vs-viewing-vs-funeral-

whats-the-difference/ [https://perma.cc/BUS4-ANG2].

41. See id.; see also Curtis Rostad, The Basics of Funeral Service, I

ND. FUNERAL

DIRECTORS ASS’N, https://www.indiana-fda.org/the-basics-of-funeral-service [https://perma.

cc/YPQ7-9VF6] (affirming the presence of remains at funerals as a means to “confirm the

reality . . . of death”).

42. See H

AL HASSEN & DAWN COBB, CEMETERIES OF ILLINOIS: A FIELD GUIDE TO

MARKERS, MONUMENTS, AND MOTIFS 95–97 (2017).

43. R

OBERT KASTENBAUM, ON OUR WAY: THE FINAL PASSAGE THROUGH LIFE AND

DEATH 278 (2004) (“Throughout North America most cremains are either delivered to the

cemetery (41 percent) or taken home (36 percent), where they will have various dispositions:

kept at home, buried elsewhere, placed in a columbarium, or scattered.”).

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2021] FUNERAL POVERTY 395

a reception or gathering (which may involve food and beverages) to

be held as the conclusion of the burial site phase.

B. Casket Versus Cremation

Human remains in the United States generally take one of three

paths—casket, crematorium, or medical donation.

Burial was the

normative path in the United States until 2015, when the prefer-

ence flipped to fire-based cremation.

Developed as a practice

roughly 5000 years ago,

the popularity of cremation has in-

creased dramatically in the United States only within the past two

decades, with rates rising from 5% in 1970

to more than 50% to-

day.

This shift in consumer preference makes sense: more people are

unchurched (only 36% regularly attend religious services)

and en-

vironmentally aware, and fewer people have an interest in visiting

44. Brendan Kiley, The Architect Who Wants to Redesign Being Dead,

NSURANCENEWSNET (Apr. 1, 2015), https://insurancenewsnet.com/oarticle/The-Architect-

Who-Wants-to-Redesign-Being-Dead-a-609801 [https://perma.cc/LL85-R436].

The American dead, like American voters, fall roughly into two camps. In this

. . . analogy, the conventional burial industry is like the Republican Party: a

lot of suits, a lot of money, lobbyists to protect their interests, and a general

acceptance that cutting down trees (for caskets), pouring concrete (for vaults),

and putting toxic chemicals underground (embalming fluids) are simply part

of the American way. Cremationists are more like the Democratic Party:

slightly looser dress code, still interested in profit margins but perhaps not as

fanatically (there is a lot less money to be made from a $400 urn than a $3000

casket), and a belief that they are on the progressive side of history.

Id.

45. Josh Sanburn, Cremation Is Now Outpacing Traditional Burial in the U.S., T

IME

(Aug. 1, 2016, 6:00 AM), https://time.com/4425172/cremation-outpaces-burial-u-s/ [https://

perma.cc/4FQV-QGKX].

46. Michael Strasburg, The Rise of Cremation Has Turned the Funeral Industry Upside

Down, SW

NEWS MEDIA (Oct. 7, 2019), https://www.swnewsmedia.com/jordan_independent

/news/business/the-rise-of-cremation-has-turned-the-funeral-industry-upside-down/article

_8a42c21c-900d-5601-9e81-3933a0ca2b57.html [https://perma.cc/ST4C-3ZL6].

47. See Leanne Pott, 6 Funeral Trends That Are Changing Death Rituals, AARP (Nov.

20, 2017), https://www.aarp.org/home-family/friends-family/info-2017/funeral-ceremony-tr

ends-fd.html [https://perma.cc/WJE2-W55Y].

48. Antonia Blumberg, Americans Are Opting for Cremation over Burial at the Highest

Rate Ever, H

UFFPOST (July 28, 2017, 5:58 PM), https://www.huffpost.com/entry/american-

cremation-rate_n_597b7e9ce4b02a4ebb755bb9 [https://perma.cc/UK7L-LQFW].

49. Karen Heller, The Funeral as We Know It Is Becoming a Relic—Just in Time for a

Death Boom, W

ASH. POST (Apr. 15, 2019, 5:00 AM), https://www.washingtonpost.com/lifesty

le/style/the-funeral-as-we-know-it-is-becoming-a-relic--just-in-time-for-a-death-boom/2019/

04/14/a49003c4-50c2-11e9-8d28-f5149e5a2fda_story.html [https://perma.cc/ZTT9-DGLT].

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396 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

gravesites.

The unchurched are less concerned about religious re-

strictions historically placed on cremation.

Further, cremation

has become increasingly accepted by religious organizations.

It is

a less burdensome process both from an economic and an environ-

mental perspective, in that it foregoes embalming, a casket, or a

burial plot.

And as Americans become increasingly mobile and

geographically dispersed, family burial plots and hometown ceme-

teries hold less of a draw.

II.

THE FINANCIAL BURDEN OF DEATH: BEG, BORROW,

SURRENDER

The unaffordability of disposal of human remains is a topic that

is seldom considered, discussed, or researched—with the term “fu-

neral poverty” only recently being coined to draw awareness to im-

portant economic implications.

It is a particularly relevant sub-

ject to consider when the state itself plays a dominant role in

imposing an economic burden through state laws that may require

50. See id.

51. See, e.g., Josh Nathan-Kazis, More Jews Opt for Cremation, F

ORWARD (June 27,

2012), https://forward.com/news/158218/more-jews-opt-for-cremation/ [https://perma.cc/XU

5Q-6QMF] (noting that cremation remains taboo among most Jews, but one Jewish funeral

professional reports that roughly 10% of the funerals he handles involve cremations).

52. Id. (“Cremation remains taboo among most Jews, even in the non-Orthodox denom-

inations. No hard numbers on the practice exist. And conversations with Jewish funeral

professionals from across the country suggest that the proportion of Jews who choose cre-

mation varies widely by city. But almost all . . . agree the general trend is up. . . . Joe Levine,

of [one of Philadelphia’s] major Jewish funeral home[s], Joseph Levine & Sons, said that

roughly 10% or 11% of the funerals he handles are cremations.”).

53. See Blumberg, supra note 48; Pott, supra note 47.

54. See Blumberg, supra note 48; Pott, supra note 47.

55. Within growing awareness of problems paying for funerals has emerged a

concept of “funeral poverty.” The term seems to be a relatively recent construct,

probably emerging around five years ago as part of a focus on problems with the

Social Fund Funeral Payment. . . .

The concept of “funeral poverty” is thus used in a number of contexts encompass-

ing poverty and financial hardship, indebtedness, welfare reform, use of food

banks, constraints on and challenges for the funeral industry, the experience of

grief, and provision of bereavement services and support. Within these various

contexts are different perspectives and emphases. But there is no definition of

“funeral poverty” or general agreement on what it means.

Anne Corden & Michael Hirst, The Meaning of Funeral Poverty: An Exploratory Study 3–4

(Univ. of York Soc. Policy Research Unit, Working Paper No. WP 2668, 2015), https://www.

mariecurie.org.uk/globalassets/media/documents/policy/policy-publications/march-2016/me

aning-of-funeral-poverty-exploratory-study.pdf [https://perma.cc/GK34-GAU2].

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 397

that families become customers of the funeral industry.

Research

done by the Federal Reserve shows that 40% of Americans would

have great difficulty covering an unexpected $400 expense.

What

do the poorest among us do when a loved one dies? What resources

are available to assist low-income or middle-income families who

may be unable to pay? Part II considers the options available to

those who are financially unprepared to shoulder the disposition

costs of a deceased loved one.

An enduring myth is that medical donation of remains is an op-

tion for anyone who is unable to afford death care service. Cadav-

ers are needed for medical education and research,

these pro-

grams rely upon goodwill donations, and so the institution

accepting the donation agrees to cover cremation costs when the

cadaver is no longer needed.

The reality is that there are broad

disqualifications to donate remains and this is not a viable option

for many Americans. Bars to donation instituted by medical

schools and nonprofit institutions include (1) donors who have suf-

fered trauma (e.g., car accident, limb amputation, etc.); (2) donors

who died because of an infectious disease; (3) a donor with a body

mass index above 35;

and (4) some programs restrict height and

weight in terms of absolutes (e.g., over six feet tall and 200

56. Nine states require families to become customers of a funeral director: Connecticut,

Illinois, Iowa, Indiana, Louisiana, New York, Michigan, Nebraska, and New Jersey. See,

e.g., T

ANYA MARSH, THE LAW OF HUMAN REMAINS 74 (2015); cf. Brandon Heffinger, Only

Nine States Require the Use of Funeral Directors, F

UNERAL L. BLOG (Mar. 3, 2014), https://fu

nerallaw.typepad.com/blog/2014/03/only-nine-states-require-the-use-of-funeral-directors.ht

ml [https://perma.cc/4KTD-YS27] (describing process differences absent a funeral director

requirement, noting, “[i]n states like North Carolina, citizens can bury their recently de-

ceased loved ones without much oversight or regulation.”).

57. F

ED REPORT, supra note 3, at 21 (noting that four in ten adults, if faced with an

unexpected expense of $400, either would not be able to cover it or would cover it by selling

something or borrowing money).

58. See Alex Mar, Rent-a-Grave, S

LATE (Feb. 28, 2011, 6:54 AM), https://slate.com/hum

an-interest/2011/02/the-greek-burial-crisis-with-land-a-valuable-resource-the-state-require

s-the-recycling-of-cemetery-space.html [https://perma.cc/YD2S-LQDY] (noting that roughly

8000 cadavers are needed annually for medical training).

59. Jeanne Sager, Most Americans Are Too Fat to Donate Their Bodies to Science, V

ICE

(Mar. 14, 2017, 10:00 AM), https://www.vice.com/en_us/article/vvjz3d/most-americans-are-

too-fat-to-donate-their-bodies-to-science [https://perma.cc/B5YK-DMPS].

60. Id. With a body mass index over thirty, one may be characterized as “obese.” Id. A

BMI over forty is considered a signal of morbid obesity. See id. Professor Steven Heymsfield

of Louisiana State University does not mince words explaining the obesity cap rationale,

stating, “When you’re doing medical dissection, and you’re up to your elbows in fat, it’s

greasy and unpleasant.” Id.

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398 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

pounds).

Further, although it is illegal to sell the remains of your

deceased loved one in the United States, a commercial market ex-

ists for the purchase and sale of cadavers and dismembered parts.

The loved ones of a decedent stand to make no profit on remains

that are commoditized to generate a substantial return for oth-

ers.

Body brokers generally receive cadavers for free (or close to

free)

from survivors who often believe the remains will be used

for research or education—and brokers stand to make as much as

$5800 selling the whole cadaver (or possibly more for a disaggre-

gated cadaver).

Finally, there is little oversight over medical do-

nation as a whole, and little guarantee that donated remains will

be used for the intended purpose.

By way of example, bodies do-

nated to Tulane University in 2004 were shipped to a broker who

then passed them to the Army for landmine experiments.

Few good options remain for those who are economically con-

strained and are unable to afford funeral, burial, or cremation ex-

penses. The Funeral Consumers Alliance does not provide any

funding to consumers, but will assist the consumer with finding

low-cost options.

If the death of the decedent is attributable to a

national disaster, the Federal Emergency Management Agency

(“FEMA”) may be authorized to provide burial assistance.

The

61. Id. (“Most medical school tables are not large enough to accommodate a human be-

ing larger than 200 lbs. or longer than 6’ tall. Donated bodies also have to be moved by

students and/or researchers, and heavier bodies are harder to move, posing injury risk.”).

62. See, e.g., Corinne Purtill, The Awful Truth of Donating a Body to “Science,” Q

UARTZ

(Oct. 25, 2017), https://qz.com/1111853/the-unregulated-reality-of-donating-a-body-to-scie

nce/ [https://perma.cc/93TH-748L].

63. See, e.g., John Shiffman & Reade Levinson, Made in America: U.S. Body Brokers

Supply World with Human Torsos, Limbs and Heads, R

EUTERS: THE BODY TRADE (Feb. 8,

2018, 12:00 PM), https://www.reuters.com/investigates/special-report/usa-bodies-export/

[https://perma.cc/D6JW-Q5LZ].

64. See id. (“‘I had no money,’ said Tina Johnson . . . [and] ‘[i]t was a free cremation.’

Mary Hughes, whose 52-year-old son, Grady Hughes Jr, died of cancer in late 2012, recalled

that ‘somebody from hospice gave us a pamphlet. It was a good idea. . . . The cremation was

free, and it was donating the body for medical purposes.’”).

65. Id.

66. Purtill, supra note 62 (noting that the public does not “understand how sketchily

this industry is governed”).

67. Shiffman & Levinson, supra note 63.

68. See generally Losing a Loved One Is Hard. Planning a Funeral Shouldn’t Be.,

UNERAL CONSUMERS ALLIANCE, https://funerals.org/ [https://perma.cc/PL2Q-SRKT].

69. Funeral Assistance Fact Sheet, FEMA, https://www.fema.gov/media-library-data/1

565189678667-0fdafea4dbca363ed6380cf2ae453aa8/FACTSHEET_FuneralAssistanceFIN

A2019Compliant.pdf [https://perma.cc/4Z7A-JCQA]; see Lisa Song & Yeganah Torbati,

Grieving Families Need Help Paying for COVID-19 Burials, but Trump Hasn’t Released the

Money, P

ROPUBLICA (Apr. 29, 2020, 2:51 PM), http://www.propublica.org/article/fema-bur

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2021] FUNERAL POVERTY 399

Social Security Administration offers a one-time death settlement

amount of $255 to the spouse or children of the decedent.

If the

decedent was of retirement age, his surviving spouse or children

may also be eligible for survivor’s benefits.

Benefits may also be

available through the United States Department of Veterans’ Af-

fairs if the deceased served in the military.

Also, a number of

charities exist to help those in financial need. Surviving loved ones

should consider charities related to the deceased’s military history,

union membership, professional membership, club membership,

religious affiliation, and/or hobbies.

States or municipalities may have programs available to assist

with burial and funeral expenses for victims of homicide.

In some

jurisdictions, it is relatively easy for survivors to receive compen-

sation or assistance. In others, reimbursement may take a sub-

stantial amount of time and require that survivors advance costs

and wait for reimbursement.

Conditions for these programs may

ial-relief-coronavirus [https://perma.cc/M3WK-HEPB] (“FEMA has helped pay for the

burials of victims of past disasters. But months into the coronavirus pandemic, the Trump

administration has sat on similar requests. Families of COVID-19 victims have been forced

to turn to religious centers and GoFundMe.”).

70. Does Medicaid Pay for Cremation?, M

EDICARE, https://www.medicare.org/articles/

does-medicaid-pay-for-cremation/ [https://perma.cc/J6G5-UE3J].

71. Planning for Your Survivors, S

OC. SECURITY ADMIN., http://www.ssa.gov/benefi

ts/survivors/onyourown.html [https://perma.cc/9N3W-EDH8].

72. Compensation: Burial Benefits, U.S. D

EP’T VETERANS AFF., https://www.benefits.

va.gov/compensation/claims-special-burial.asp [https://perma.cc/9YVB-EMRP].

73. See Transforming Society’s Response to Homicide, L

OUIS D. BROWN PEACE INST.,

http://www.ldbpeaceinstitute.org/news/louis-d-brown-peace-institute-announces-burial-as-

sistance-fund-survivors-violent-crimes [https://perma.cc/5JN9-3S9N]. Low-income families

can reach out to Maryland’s Criminal Injuries Compensation Board (“CICB”) for help cov-

ering up to $5000 in burial costs. Karen Houppert, From Gunshot to Grave: The High Cost

of Murder in Baltimore, B

ALT. SUN (Jan. 12, 2016), https://www.baltimoresun.com/citypa-

per/bcpnews-from-gunshot-to-grave-the-high-cost-of-murder-in-baltimore-20160112-story

.html [https://perma.cc/47XY-4SGS]. It can take up to six months for these claims to be ap-

proved. Id. In Chicago, up to $7500 in funeral expenses will be paid to the families of homi-

cide victims—which has created concerns that some funeral homes are engaging in preda-

tory practices to ensure all $7500 is spent. Chicago’s ‘Predatory’ Funeral Homes Making a

Killing in US Murder Capital, RT (Aug. 27, 2018, 9:47 AM), https://www.rt.com/busin

ess/436920-funeral-homes-homicide-victims/ [https://perma.cc/E7T3-BRTA].

74. See 4 Ways to Get Help Paying for Funeral Expenses, S

CI. CARE (Dec. 1, 2015), https:

//www.sciencecare.com/blog/4-ways-to-get-help-paying-for-funeral-expenses [https://perma.

cc/DQ6F-9L79] (noting difficulties associated with indigent burial programs at a county or

state level, stating, “These services are becoming increasingly difficult and time consuming

to qualify for as local government budgets are tight”); see also Liz Farmer & Mattie Quinn,

Rising Funeral Costs Put Pressure on Local Governments, G

OVERNING.COM (June 6,

2019, 11:54 AM), https://www.governing.com/topics/finance/gov-funeral-assistance-cost.

html [https://perma.cc/7B43-RHLC] (quoting one judge grappling with his county’s limited

budget: “I’m out of money for indigent burials this year, and I’ve got six months left to go.”).

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400 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

limit eligibility.

States or municipalities may also offer programs

to assist with some or all of the burial or funeral expenses for those

decedents who are on a public assistance program at the time of

their death.

Another enduring myth is that Medicaid pays funeral, burial, or

cremation expenses.

When an applicant’s income or assets exceed

the qualification cap, the applicant may need to spend down in-

come or assets to be eligible for Medicaid.

Provided that condi-

tions are met, funds set aside and earmarked to cover funeral, bur-

ial, or cremation costs may be excluded from asset accountings for

purposes of determining eligibility.

Though Medicaid itself does

not cover funerary expenses, resources may exist at the state or

county level to provide funeral assistance for those enrolled in

Medicaid.

The loved ones of the decedent should always investigate

whether internment rights in a particular graveyard were pur-

chased prior to death (and generally paid for in full at the time of

purchase),

and also whether any pre-need (as compared to at-

need) prepayment planning was done to cover funeral, burial, or

crematory expenses.

There is no reliable data on the number of

75. For example, in Ohio, survivors are ineligible if the victim was convicted of a drug-

related or violent crime in the decade preceding the homicide. Ohio Victims of Crime Com-

pensation Program,

OHIO ATT’Y GEN., https://www.ohioattorneygeneral.gov/Files/Individua

ls-and-Families/Victims/Crime-Victim-Comp-Form.aspx [https://perma.cc/PV5L-C2EH].

Ohio’s Victims of Crime Compensation Program avails Ohio citizens of state funding to cover

expenses resulting from crime-related injury or death. Id. The application for said assis-

tance specifically states in its eligibility checklist that “[a]nyone who engaged in a felony of

violence or drug trafficking within 10 years prior to the crime that caused the injury [or

death]” is not eligible for state assistance. Id.

76. For example, in Illinois, such a benefit exists but the maximum amount that may

be paid is $1103 for a funeral or $552 for a cremation. Funeral & Burial Benefits, I

LL. DEP’T

HUM. SERVS., https://www.dhs.state.il.us/page.aspx?item=30367 [https://perma.cc/74KZ-

MF9R]. In Washington, D.C., “funeral aid maxes out at $800 for a burial and caps the fam-

ily’s total expenses at $2,000.” Farmer & Quinn, supra note 74. In New York City, as long

as the funeral, in its entirety, costs no more than $1700, the state may avail survivors up to

$900 in funeral assistance; cremation costs are exempt from this cap. Id. By comparison,

Arizona “limit[s] subsidies to $485 and require[s] families of the deceased to prove they’re

financially in need.” Id.

77. Does Medicaid Pay for Cremation?, supra note 70.

78. Id.

79. Id.

80. Kate Wight, Medicaid Funeral Assistance: Benefits & How to Access Them, C

AKE

(Oct. 10, 2019), https://www.joincake.com/blog/medicaid-funeral-assistance-benefits/ [https:

//perma.cc/5T2X-J23E].

81. See M

ARSH, supra note 56, at 75.

82. See id.

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consumers who engage in pre-need prepayment planning, and pre-

payment options are not governed by the Funeral Rule.

It has

been estimated that roughly 70% of decedents have done no life-

time estate or burial planning, but for those who have done lifetime

funeral planning, roughly 50% to 85% prepay, and the American

Association for Retired Persons approximates that there are $40

billion in pre-need funeral contracts in existence.

It is worth in-

vestigating if your deceased loved one may have done pre-need

planning and prepayment, because a failure to do so may mean

paying for expensive goods and services that have already been

purchased.

When all potential resources have been exhausted that may be

of assistance to the financially responsible party, the last remain-

ing options are to beg, borrow, or surrender the decedent. There is

cause to be concerned that survivors are now trusting that friends

and family will scrape together money to cover funerary expenses,

in much the same way that one raises money for a noble charitable

cause through a carwash or bake sale.

Crowdfunding is consid-

ered a dignified way in which to approach family and friends to ask

for financial assistance in times of grief, and platforms for raising

money for funeral assistance abound: GoFundMe,

YouCaring,

MyCause, Pozible, FuneralFund,

GracefulGoodbye, Indiegogo,

and FuneralFundMe.

Crowdfunding seems to have become a

norm for families dealing with unexpected deaths to crowdfund fu-

neral, burial, and cremation expenses.

In fact, the Chief Execu-

83. See Pre-Paid Funeral Plans: Buyer Beware, ELDER L. ANSWERS (Dec. 24, 2018),

https://www.elderlawanswers.com/pre-paid-funeral-plans-buyer-beware-1098 [https://perm

a.cc/F6U5-DGDZ].

84. See M

ARSH, supra note 56, at 75.

85. See Laura M. Holson, As Funeral Crowdfunding Grows, So Do the Risks, N.Y. T

IMES

(June 5, 2018), https://www.nytimes.com/2018/06/05/business/funerals-crowdsourcing-crow

dfunding-scams.html [https://perma.cc/RVH5-RAA9].

86. Id. (“GoFundMe, one of the largest fund-raising sites, says that 13 percent of its

campaigns created in 2017 were described as memorials, which include funerals and are

one of the company’s fastest growing categories. That follows on a 2015 study by the Funeral

and Memorial Information Council, which reported that 17 percent of adults aged 20 to 39

had used the internet to solicit or donate money for funeral-related arrangements.”).

87. Julie Power, Fears over GoFundMe Boom in Fundraising for Funerals, S

YDNEY

MORNING HERALD (Aug. 13, 2016, 1:50 PM), https://www.smh.com.au/national/fears-over-

gofundme-boom-in-fundraising-for-funerals-20160803-gqjunv.html [https://perma.cc/NTR2

-2U8R].

88. Holson, supra note 85.

89. Song & Torbati, supra note 69 (“GoFundMe sites that have sprung up in the crisis

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

402 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

tive Officer of GoFundMe admits that his staff coaches funeral or-

ganizers

on ways to stage fundraising campaigns to optimize the

chances the campaign will go viral.

The rarely addressed ineq-

uity

that exists with crowdfunding of funerary expenses is that

campaigns are more likely to be lucrative when the subject of the

campaign is young,

white, and attractive.

Borrowing to shoulder the financial burden of death service ex-

pense is another option. In the United States, funeral homes gen-

erally accept credit cards.

For the creditworthy, an unpaid bal-

ance remaining on the books of a funeral home will often accrue

show the shortfalls many families are facing. Family and friends of Devin Francis, a 44-year

old radiology technician in Miami who was about to get married when he died of COVID-19

in early April, raised $4300 of its $5000 GoFundMe goal.”).

90. Holson, supra note 85; see generally Mike Pearl, People Are Now Crowdfunding

Their Funerals Online, VICE (Sept. 19, 2013, 8:30 AM), https://www.vice.com/sv/article/

9bz5wa/people-are-now-crowdfunding-their-funerals-online [https://perma.cc/US9Y-4RYZ]

(“But if I were a crooked funeral director, I would see directing customers to these new

fundraising opportunities as an alternative to letting them glimpse the last page in my

‘menu of services’ marked in fancy cursive ‘For the Bereaved of Humbler Means.’ Why show

a customer the cheaper option if I can direct them to a source of money instead?”).

91. Holson, supra note 85. Funeral organizers are not the only industry participants

coached to optimize viral crowdfunding campaigns: “The bereaved, too, are advised to con-

tact reporters and refresh pages with comments to maintain interest.” Id.

92. See Nathaniel Popper & Taylor Lorenz, GoFundMe Confronts Coronavirus Demand,

N.Y.

TIMES (Mar. 26, 2020) (citing Sumin Lee & Vili Lehdonvirta, New Digital Safety Net

or Just More ‘Friendfunding’? Institutional Analysis of Medical Crowdfunding in the United

States (Mar. 5, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559901 [https:

//perma.cc/4TV5-G7XU]), https://www.nytimes.com/2020/03/26/style/gofundme-coronavir

us.html [https://perma.cc/SWY3-QSW3].

Two researchers at the Oxford Internet Institute wrote a paper . . . that sug-

gests that campaigns in wealthier areas of the United States, with better pre-

existing social nets, tend to be more successful than those in poorer areas,

where the need is greater to begin with. “Campaigns are least likely to reach

their goals when they most need it,” said Sumin Lee, the lead author of the

paper. “It could be a good opportunity, but we have to be mindful that the suc-

cess in crowdfunding at a time like this is likely to be unevenly distributed.”

Id.

93. See Pearl, supra note 90 (“It would cost about $10,000 to bury your dead ass right

now. I’m talking to you, 18- to 35-year-olds . . . . If you die penniless, your family could and

should consider going the crowdfunding route on Giveforward, Donationto, or Graceful

Goodbye.”).

94. See Tamara Kneese, Mourning the Commons: Circulating Affect in Crowdfunded

Funeral Campaigns, SOC. MEDIA + SOC’Y, Jan. 2018, at 9 (“Those who are most marginal in

society are the least likely to attract sufficient compassion and are therefore likely to have

failed crowdfunding campaigns.”).

95. Payment Options, F

UNERAL HELP PROGRAM, https://www.funeral-help.com/funeral-

topics/payment-options/ [http://perma.cc/2Z47-2VZY] (advocating lower interest rates of

credit cards compared to carrying a balance at a funeral home, and noting use of credit cards

to pay for funerals “is also a good way to keep your insurance benefits out of the hands of

the death industry”).

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more interest than an introductory credit card offer with a low in-

terest rate.

A subprime loan industry has developed to offer fi-

nancing for those with bad or nonexistent credit, with one site ad-

vertising interest rates as high as 35.99%.

The final option available to those who are unable to bear the

expense of death service is to simply surrender or abandon the de-

ceased. Every state has a different approach to the disposition of

indigent or unclaimed remains, which may be cremated or buried

in a potter’s field.

The disposition of the unclaimed dead occurs

largely at the expense of the taxpayer when living relatives cannot

be found, although the inability to trace next of kin has become

increasingly less common in the age of the internet.

However,

some relinquish rights over the deceased for no other reason than

they are priced out of funerals or burials,

100

and there is no other

choice than to allow local authorities to do as they wish with the

remains.

101

III.

A MARKETPLACE OF INEVITABLE CONSUMPTION

For the majority of consumers, paying for funerary expenses (fu-

neral, burial, and/or cremation) will be the third-largest expense of

their lifetime, after the purchase of a house and an automobile.

102

Funerary expenses are distinct from other household expenses in

a myriad of ways, but notably, they are often accompanied by be-

reavement of the loss of a loved one. Death is regarded as one of

96. Id.

97. Eric Bank, 4 Bad-Credit Funeral Loans, B

ADCREDIT.ORG (Jan. 3, 2020), https://

www.badcredit.org/how-to/bad-credit-funeral-loans/ [https://perma.cc/3FJC-Y4X4].

98. Hart Island in New York City is the largest potter’s field in the county, with more

than a million men, women, and children being buried there in trenches since 1869. See

Nina Bernstein, Unearthing the Secrets of New York’s Mass Graves,

N.Y. TIMES (May 15,

2016), https://www.nytimes.com/interactive/2016/05/15/nyregion/new-york-mass-graves-ha

rt-island.html [https://perma.cc/HNS9-TL43] (noting that some people argue that “the gov-

ernment’s power to appropriate the bodies of the marginalized should be unacceptable to-

day”). It is off-limits to the public and the burials are managed through prison labor. Id.

99. See Angela Kennecke, Abandoning the Dead, K

ELOLAND (Jan. 15, 2017, 9:58 PM),

https://www.keloland.com/news/abandoning-the-dead/ [https://perma.cc/T77N-APEN].

100. See Williams, supra note 23 (noting that a coroner in Illinois resigned after receiving

criticism for holding remains “hostage” until living relatives could pay $1000).

101. See Kennecke, supra note 99 (“Abandoning the dead isn’t always about the money.

Some relatives just never pick up the ashes after cremation. When Schmitz became the

funeral home manager 20 years ago, there were 30 cremains sitting on the shelf unclaimed.

Some had been there for decades.”).

102. Kopp & Kemp, supra note 5, at 326.

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404 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

life’s most stressful events for the living, with a third of survivors

suffering from detrimental mental or physical health issues follow-

ing a major loss.

103

Part III of this Article will consider obstacles

and challenges that exist in the market structure for death and

will then explore gaps in marketplace regulation that bear upon

issues of consumer choice and pricing.

A. Structural Features, Obstacles, and Challenges

The structure of any marketplace has the potential to influence

consumption choices. The main features of the death services in-

dustry that impact consumer choices include uncertainty of need,

information asymmetry, vulnerability of the consumer, and an in-

elastic marketplace.

When a consumer is unaware of the time period in which they

must consume, they are unlikely to do so unless the need becomes

obviously more pressing—which is the reason that socioeconomics,

age, and infirmity

104

all have a bearing on both estate planning and

death service prearrangement.

105

Because of a failure of consumers

to prearrange death services, most consumption within the death

services space will occur through bereaved survivors.

106

The living

are tasked with approximating the wishes of the deceased as to

disposition of remains.

107

Decisions must be made in relatively

short order during a time of grieving.

103. Colin Murray Parkes, Coping with Loss: Bereavement in Adult Life, 316 BMJ 856,

856 (1998). One study found that death following termination of life support induced stress

levels on par with survivors of construction and ferry disasters, and more than twice as high

as those who have lost their personal residence to fire. OHSU Researchers Discover Powerful

Role of Advance Directives in Relieving Family Stress, O

R. HEALTH & SCI. U. (Mar. 15, 2001),

https://news.ohsu.edu/2001/03/15/ohsu-researchers-discover-powerful-role-of-advance-direc

tives-in-relieving-family-stress [https://perma.cc/58LH-E9W4].

104. The COVID-19 pandemic reminds everyone of their own mortality. Some funeral

directors report that prearrangement planning and purchases have jumped significantly.

Jane Wells, Coronavirus Pandemic Forces the Funeral Industry Online, CNBC (May 27,

2020, 1:30 PM), https://www.cnbc.com/2020/05/27/coronavirus-pandemic-forces-the-funeral-

industry-online.html [https://perma.cc/AAM5-LAZA].

105. Dwayne A. Banks, The Economics of Death? A Descriptive Study of the Impact of

Funeral and Cremation Costs on U.S. Households, 22 D

EATH STUDS. 269, 272 (1998)

(“[W]hen surveyed over 80 percent of adult Americans reported that the appropriate time

for making these arrangements is when they are afflicted with a serious illness.”).

106. Mark Evely, When Someone Dies, What Happens to the Body?, C

ONVERSATION (Sept.

15, 2020, 7:49 AM), https://theconversation.com/when-someone-dies-what-happens-to-the-

body-143070 [https://perma.cc/2J7X-6PJX].

107. S

TEPHEN PROTHERO, PURIFIED BY FIRE: A HISTORY OF CREMATION IN AMERICA 1

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2021] FUNERAL POVERTY 405

This is problematic: the grief-stricken consumer does not behave

like the typical consumer and is forced to deal with an extraordi-

narily expensive expenditure at a time when he or she is likely to

be cognitively impaired.

108

Grieving can and often does cause the

bereaved to develop bodily symptoms, particularly when the “grief

cannot be handled adequately by the psychological structure.”

109

The bereaved may often be in a constant state of discomfort or dis-

traction, unable to concentrate, and have little energy for new ac-

tivities or relationships.

110

Grief can also result in suppressed im-

munity, increased blood pressure, and higher risk of blood clots.

111

Almost all studies on bereavement and mortality show that grief

increases (sometimes dramatically) mortality rates.

112

During this time of bereavement, the relatively uninformed con-

sumer generally leans upon the advice of industry professionals

with a profit-seeking objective

113

—and in doing so, the funeral di-

rector becomes the primary source of information with regard to

death services options.

114

Information asymmetry becomes an is-

sue, and the consumer deals with the challenge of “etiquette un-

certainty” in attempting to make arrangements for a loved one.

115

(2001) (“In every human society the living care for the corpse.”).

108. See Bernal, supra note 6. In the U.K., the average family “falls into £1,600 debt to

cover funeral costs, often taking payday loans to cover the expense.” Id.

109. R

OBERT KASTENBAUM, DEATH, SOCIETY, AND HUMAN EXPERIENCE 336 (5th ed.

1995).

110. Id.

111. See Thomas Buckley, Dalia Sunari, Andrea Marshall, Roger Bartrop, Sharon

McKinley & Geoffrey Tofler, Physiological Correlates of Bereavement and the Impact of Be-

reavement Interventions, 14 D

IALOGUES IN CLINICAL NEUROSCIENCE 129, 130 (2012) (observ-

ing “cortisol remains elevated for at least . . . 6 months of bereavement,” linking bereave-

ment to physical manifestations of grief as cortisol is “associated with increased cardiac risk,

reduced immune function, and reduced quality of life.”).

112. K

ASTENBAUM, supra note 109, at 338.

113. See Banks, supra note 105, at 274–75 (noting funeral directors have no incentive to

nudge consumers toward more affordable alternatives).

114. B

UREAU OF CONSUMER PROT., FUNERAL INDUSTRY PRACTICES: FINAL STAFF REPORT

TO THE

FEDERAL TRADE COMMISSION AND PROPOSED TRADE REGULATION RULE 4 (1978)

(“While the ‘traditional’ funeral may be beneficial to some, its widespread advocacy by fu-

neral directors has served to restrict unreasonably consumers’ choices in arranging for dis-

position of the dead. In many instances, funeral ‘counseling’ is really thinly-disguised sales-

manship designed to persuade consumers to purchase additional and costlier funeral

merchandise and services.”).

115. For example, one forty-year-old father experienced etiquette uncertainty upon the

burial of his infant son. Mercedes Bern-Klug, The Decision Labyrinth: Helping Families

Find Their Way Through Funeral Options, 28 G

ENERATIONS: J. AM. SOC’Y ON AGING 31, 32

(2004). The father wanted to remain graveside until his son’s casket was buried, but the

cemetery staff insisted they would bury the casket after everyone departed. Id. The father

felt pressured to leave—and years later, he continued to wonder if his son’s casket was ever

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406 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

The consumer does not understand the socially acceptable behav-

ior or etiquette involved in making death services arrangements,

and relies upon advice offered by the funeral home (which is usu-

ally the first and only one they contact). The consumer is unlikely

to push-back or question the expertise tendered by the funeral di-

rector.

116

Further, the stakes are raised for all of these decisions

because of the speed with which decisions must be made and the

finality of the decisions—cremation cannot be undone, caskets may

never be returned, and so forth.

117

Consider the example of Surviving Spouse. He is married to the

Deceased, who died without preplanning or burial instructions.

The couple has been married for decades and the passing of the

Deceased is attributable to the natural wasting of age—imminent,

not entirely expected, but certainly inevitable. In a 2016 survey,

81% of respondents report that they only contact one funeral home

before contracting services, and it is highly likely that Surviving

Spouse will contact only one funeral home.

118

The choice of funeral

home may be based upon either geographic convenience or a rec-

ommendation of a friend, neighbor, clergy member, or doctor. The

moment that the funeral director picks up the body of the De-

ceased, an important decision with economic consequences has

been made.

119

Products and pricing will be dictated by that one fu-

neral director.

120

Delaying the selection of a funeral director so as

to do some market research and engage in price comparisons is

possible, but as discussed in depth below, few funeral directors

make information available online. Grief turns Surviving Spouse

into a vulnerable consumer who is unlikely to be price sensitive

and is susceptible to emotional manipulation.

121

buried. Id.

116. See id.

117. Id.

118. Jones, supra note 26.

119. For further discussion on possible economic consequences associated with funeral

arrangement decisions, see Byron D. Sher, Funeral Prearrangement: Mitigating the Under-

taker’s Bargaining Advantage, 15 S

TAN. L. REV. 415, 420–23 (1963).

120. The funeral industry has drawn great criticism for abusive marketing and sales

tactics. Grace D. Dawson, John F. Santos & David C. Burdick, Differences in Final Arrange-

ments Between Burial and Cremation as the Method of Body Disposition, 21 O

MEGA: J.

DEATH & DYING 129, 144 (1990). That said, strikingly little research has been done address-

ing the industry’s influence over consumer choice. In one survey completed by death services

purchasers, they perceived very little influence exerted by funeral or crematory personnel.

Id.

121. Surviving Spouse may be manipulated by his “desire to show the ‘proper respect’

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2021] FUNERAL POVERTY 407

This is not to suggest that the industry is intentionally exploita-

tive, but instead, to recognize that there are systemic economic

pressures upon the death services industry due to the inelastic na-

ture of death: the number of deaths per year is inelastic. There is

a fixed number of deaths per year, and an incentive to maximize

profits with each decedent handled through the business. Accord-

ing to the National Funeral Directors Association (“NFDA”) 2018

Cremation & Burial Report, the average funeral home NFDA mem-

ber handled 113 funerals per year.

122

For the funeral home to be a

sustainable business, all overhead for the year must be met

through a limited and relatively fixed number of funerals—which

creates incentives to influence the consumer when such influence

is possible.

B. Gaps in Marketplace Regulation

All funeral home activity is regulated by the Federal Trade Com-

mission (“FTC”) under the Funeral Industry Practices Rule, collo-

quially referred to as the “Funeral Rule.”

123

The FTC enacted the

Funeral Rule in 1984 to curtail systematic abusive practices within

the funeral industry.

124

There is no question that the Funeral Rule

was necessary in offering the consumer some form of protection.

125

Consumers now have a right to request a general price list from

the funeral provider, so that they may add or eliminate goods and

services.

126

If state or local law requires the purchase of any specific

for the deceased” and to give him or her the grand departure that they deserve. Sher, supra

note 119, at 424. If Deceased engaged in basic planning while living, it is possible he would

have announced to Surviving Spouse: “Screw $9000! Put me in a cardboard box and cremate

me for $1000.” Pre-planning may prompt vastly different guilt-free choices. Id. at 423

(point-

ing out that “[t]he most powerful as well as the most universal force playing on the family

at the time it meets the funeral director is the sense of guilt.”).

122. Sara J. Marsden, What Is the 2018 Cremation Rate in the US? And How Is This

Affecting the Death Industry?, U.S.

FUNERALS ONLINE (July 18, 2018), https://www.us-fun

erals.com/funeral-articles/2018-US-Cremation-Rate.html [https://perma.cc/7L8R-KVEP].

123. Kopp & Kemp, supra note 5, at 326.

124. Daniel Boguslaw, Death Industry Predators Eye the Spoils of a Pandemic, SOAPBOX

(Apr. 2, 2020), https://newrepublic.com/article/157149/funeral-industry-ftc-deregulation-cor

onavirus [https://perma.cc/8WEQ-HCYX] (“Before the rule, funeral homes were notorious

for extorting grieving families through a host of shady practices, which included making

false statements about the necessity of embalming, hiding prices in every step of the burial

and cremation processes, and framing expensive caskets and urns as the most ‘modestly

priced receptacles.’”).

125. Id.

126. The FTC’s Funeral Rule: Helping Consumers Make Informed Decisions During Dif-

ficult Times, F

ED. TRADE COMM’N (2012) [hereinafter The FTC’s Funeral Rule], https://www.

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408 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

good or service, this must be clearly designated on the price list

(and the law must be cited).

127

The funeral provider must tender a

price list for the casket inventory, prior to showing any caskets to

the consumer.

128

The funeral provider may not refuse to allow the

consumer to purchase a casket elsewhere, nor may they charge an

added fee to handle an outside casket.

129

When a casket is pur-

chased from an outside vendor, the funeral provider may not re-

quire that the consumer be present when it is delivered to them.

130

A funeral provider may not tell the consumer that a casket is re-

quired by law for a direct cremation, and must make available (in-

expensive) alternative containers—such as canvas, pressboard, or

cardboard containers.

131

No container or process will preserve re-

mains indefinitely, and the Funeral Rule prohibits the provider

from representing that any burial vault, grave liner, casket, or em-

balming process is able to do so.

132

Violators of the Funeral Rule

are fined and consumer protection groups have been formed.

133

The question is whether or not the Funeral Rule went far enough

in protecting the consumer. Misrepresenting state law and pricing

disclosure violations remain a problem.

134

In 2017, the FTC inves-

tigators went undercover into 134 funeral homes and found that

ftc.gov/news-events/media-resources/truth-advertising/funeral-rule [https://perma.cc/5TZP-

UBDM].

127. Id.

128. Funeral Costs and Pricing Checklist, F

ED. TRADE COMM’N (2012), https://www.con-

sumer.ftc.gov/articles/0301-funeral-costs-and-pricing-checklist [https://perma.cc/S6UB-WF

6V] (“Industry studies show that the average casket shopper buys one of the first three

models shown, generally the middle-priced of the three. So it’s in the seller’s best interest

to start out by showing you higher-end models. If you haven’t seen some of the lower-priced

models on the price list, ask to see them—but don’t be surprised if they’re not prominently

displayed, or not on display at all.”).

129. The FTC’s Funeral Rule, supra note 126. In 2009, general counsel for the NFDA

affirmed that “funeral homes may offer a discounted package funeral that is available only

to families that choose to purchase a casket from the funeral home.” T. Scott Gilligan, FTC

Staff Opinion on Discounted Packages, N

AT’L FUNERAL DIRECTORS ASS’N (Feb. 26, 2009),

https://www.nfda.org/resources/compliance-legal/ftc-funeral-rule/ftc-advisories-and-opinio

ns/ftc-staff-opinion-on-discounted-packages [https://perma.cc/J2QV-B2C2]. Gilligan cau-

tioned, however, that discounts for in-house casket purchases cannot lower the price of the

funeral home’s basic service fee. See id.

130. Erica Lamberg, Buying a Casket or Urn on Your Own for a Funeral, USA

TODAY

(Mar. 24, 2020), https://www.usatoday.com/story/community-hub/funeral-planning/2020/03

/24/buying-casket-urn-your-own-funeral/2872500001/ [https://perma.cc/3QN4-SDJT].

131. Funeral Costs and Pricing Checklist, supra note 128.

132. Id.

133. Boguslaw, supra note 124.

134. Ismat Sarah Mangla & Lisa Gibbs, When Putting a Loved One to Rest, Avoid These

Misleading Sales Tactics, M

ONEY (Nov. 9, 2012), https://money.com/avoid-misleading-fun

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2021] FUNERAL POVERTY 409

twenty-nine (21.6%) failed to disclose pricing information in com-

pliance with the Funeral Rule.

135

Because of constrained resources,

the FTC has only an estimated twelve secret shoppers to investi-

gate compliance with the Funeral Rule.

136

The FTC files very few lawsuits against violators: only six ac-

tions were filed from 2000 to 2012.

137

This is due in large part to

the Federal Rule Offenders Program (“FROP”), developed in part-

nership with the NFDA in January 1996 as an alternative to liti-

gation.

138

Under FROP, a death services provider violating the Fu-

neral Rule may avoid being publicly identified in a lawsuit for up

to $43,280 in civil penalties per violation

139

by making a voluntary

payment to the United States Treasury (or appropriate state fund)

for an amount that is likely less than the amount that would be

sought through litigation,

140

and participating in a compliance

eral-and-cemetery-sales-tactics/ [https://perma.cc/XW22-A5LW] (noting, for example, that

while embalming is seldom required, due to embalming’s notable profit margins, “a funeral

director might just forget to enlighten you about the facts.” (emphasis added)).

135. FTC Undercover Inspections of Funeral Homes in 11 States Test Prompt Compliance

with Funeral Rule Disclosure Requirements, F

ED. TRADE COMM’N (Apr. 18, 2018) [hereinaf-

ter FTC Undercover Inspections], https://www.ftc.gov/news-events/press-releases/2018/04/

ftc-undercover-inspections-funeral-homes-11-states-test-prompt [https://perma.cc/Q9L4-

KCCS].

136. Tracy Samilton, Why the Funeral Rule Is One of the Least-Known Consumer Protec-

tion Laws in the Country, M

ICH. RADIO (Oct. 22, 2018), https://www.michiganradio.org/po

st/why-funeral-rule-one-least-known-consumer-protection-laws-country [https://perma.cc/

MQN4-FGRG] (reciting the FTC’s responses, and lack thereof, to the author’s FOIA re-

quest); see One in Four Funeral Homes Breaking the Law—FTC, F

UNERAL CONSUMERS

ALLIANCE (Mar. 30, 2009), https://funerals.org/2009ftcsweeps/ [https://perma.cc/PHA5-DK

QN] (offsetting the FTC’s boastful reports of consumer-protection efforts, suggesting “de-

spite the FTC’s headline claiming the sweeps ensure consumers are protected[,] funeral

homes know the FTC has little staff to enforce the 25-year-old Rule.”).

137. Mangla & Gibbs, supra note 134.

138. FTC Announces Results of the First Year of the Funeral Rule Offenders Program,

FED. TRADE COMM’N (Jan. 22, 1997), https://www.ftc.gov/news-events/press-releases/1997/0

1/ftc-announces-results-first-year-funeral-rule-offenders-program [https://perma.cc/7CES-

7P6W].

139. See Complying with the Funeral Rule, F

ED. TRADE COMM’N (Aug. 2012), https://

www.ftc.gov/tips-advice/business-center/guidance/complying-funeral-rule [https://perma.cc

/9U4V-HSDJ]; FTC Undercover Inspections, supra note 135 (“The three year [FROP] . . . is

an alternative to an FTC lawsuit that could lead to a federal court order and civil penalties

of up to $16,000 per violation.”); see also Justin Crowe, FTC Releases Results of Undercover

Funeral Rule Investigation . . . 4 Regions Bombed, C

ONNECTING DIRECTORS (June 18, 2018),

https://connectingdirectors.com/52111-funeralrule-investigation [https://perma.cc/P3H9-N

VPJ] (pointing out another FROP benefit—when funeral directors opt for FROP, they are

not required to reduce staff).

140. The voluntary payment to the United States Treasury is 0.8% of the funeral home’s

average annual revenue for the last three years. Federal Trade Commission ‘Funeral Law’

Conducts Undercover Investigations, U.S.

FUNERALS ONLINE, https://www.us-funerals.com/

funeral-articles/funeral-law-undercover.html [https://perma.cc/JU69-RMQW]. The FTC will

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410 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

training program run by the NFDA.

141

A problem with FROP is

that the privacy of the offending funeral providers is protected: fu-

neral providers are essentially authorized to pay hush money to

the federal government to avoid public disclosure and prosecu-

tion.

142

During the last review of the FTC’s Funeral Rule in 2008, no

changes were made.

143

The Funeral Rule is up for a ten-year review

in the midst of a pandemic in May 2020, with its fate in the hands

of five FTC commissioners appointed by Donald Trump in 2018—

a panel that consists of three Republican and two Democratic ap-

pointees.

144

Democratic Commissioner Chopra, former assistant di-

rector of the Consumer Finance Protection Bureau, drafted a mem-

orandum suggesting that the appropriateness of FROP needs to be

examined, both because of the involvement of the NFDA (described

as “an industry lobbying group”) and also because the FTC “with-

holds the names of these lawbreaking funeral homes from the public

when announcing the results of funeral home inspections, a privi-

lege that no other industry under FTC jurisdiction enjoys.”

145

In addition to evaluating the appropriateness of FROP, the issue

of price disclosure needs to be revisited. The Funeral Rule was is-

sued at a time when computers were not accessible in the palm of

one’s hand and the internet had not yet been conceived. In today’s

bring an action against an offender who fails to provide tax returns to substantiate the

amount of the payment. See id.

141. The NFDA collects a fee from violators to compensate it for management of the pro-

gram. FTC Funeral Rule Review: What to Expect, AZFCCA (Jan. 23, 2020), https://azfcca.

org/ftc-funeral-rule-review-what-to-expect/ [https://perma.cc/SS2Z-W2HQ]. As the entity in

charge of running the FROP program, NFDA “reviews compliance requirements as well as

additional education and training.” Id.; see also Crowe, supra note 139 (suggesting Funeral

Rule violations are “a win for NFDA” as each violator is another “paying member[] who they

can teach to be better behaving funeral professionals”).

142. In at least one instance, the privacy of the Funeral Rule violators has been protected

even against Freedom of Information Act requests. Sheryl Harris, FTC Fails Public by Bur-

ying Funeral Home Violations: Plain Dealing, C

LEVELAND.COM (Jan. 12, 2019), https://

www.cleveland.com/consumeraffairs/2012/07/ftc_fails_public_by_burying_fu.html [https://

perma.cc/V88C-P99M] (commenting on the FTC’s refusal to provide details regarding fu-

neral homes found to have committed “supposedly lesser” Funeral Rule violations).

143. Ann Carrns, With Funeral Home Rules Due for an Update, There’s a Push for Online

Prices,

N.Y. TIMES (Mar. 29, 2019), https://www.nytimes.com/2019/03/29/your-money/fun

eral-homes-pricing.html [https://perma.cc/8TY5-K324] (“The last review of the funeral rule

ended in 2008, when . . . the commission declined to adopt any changes.”).

144. Two of the five appointees must be from the political party opposite that of the sit-

ting President. Boguslaw, supra note 124.

145. Id.

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2021] FUNERAL POVERTY 411

technology-savvy world, more than 80% of Americans use the inter-

net to comparison shop pricing and services.

146

And while public sen-

timent is that pricing for death care services should be available

online, the Funeral Rule has no such requirement. A survey con-

ducted by the consumer protection group Funeral Consumers Alli-

ance demonstrated that 73% of United States funeral homes with

websites had absolutely no pricing information available online.

147

California is the only state that requires that funeral homes list

prices online, but this requirement contains an exception that effec-

tively swallows the rule:

148

an exception

149

pushed for by the Cali-

fornia Funeral Directors Association that permits funeral homes to

simply state “price by request” instead of listing actual prices.

150

IV.

CONSIDERING FUNERAL POVERTY

Viewed through a materialistic lens, poverty is the financial in-

ability to meet basic needs.

151

Taken more broadly, poverty is a

146. Joshua Slocum & Stephen Brobeck, A Needle in a Haystack—Finding Funeral

Prices Online in 26 State Capitals, F

UNERAL CONSUMERS ALLIANCE (Jan. 29, 2018),

https://consumerfed.org/wp-content/uploads/2018/01/needle-in-a-haystack-finding-funeral-

prices-online-report.pdf?mod=article_inline [https://perma.cc/M4XW-6RTT].

147. Id.

148. Joshua L. Slocum, The Funeral Rule: Where It Came From, Why It Matters, and

How to Bring It to the 21st Century, 8 W

AKE FOREST J.L. & POL’Y 89, 107–08 (2018).

Senate Bill 658 (proposed in 2011; amended, passed, and enacted January 1,

2013) requires funeral homes to either: (a) post their complete General Price

List on their website with a prominent and intuitive link; or (b) in the absence

of posting the complete price list, list the sixteen categories of goods and ser-

vices required by the FTC Funeral Rule to be listed on funeral home price lists,

along with a notice to consumers that a complete price list is available on re-

quest.

Id.

149. Teri Sforza, Funeral Homes with Online Price Lists Charge 30% Less, Analysis Says,

ORANGE COUNTY REG. (Feb. 14, 2020, 3:01 PM), https://www.ocregister.com/2020/02/14/fun

eral-homes-with-online-price-lists-charge-30-less-analysis-says/ [https://perma.cc/A3HV-

PB3B] (“Online pricing characterizes funeral service as a commodity, which is incorrect. It

ignores the fact that different providers offer an array of service levels, from facility fea-

tures, products, and amenities, much like the example of brands in a hotel portfolio—from

Courtyard Hotels to The Ritz-Carlton.”).

150. Michael Waters, The Death Industry Is Getting Away with Murder, W

ASH.

MONTHLY (July 23, 2019), https://washingtonmonthly.com/2019/07/23/the-death-industrys-

biggest-threat/ [https://perma.cc/BWN5-3KG6].

151. Brian Fikkert, The Crisis of Global Poverty, S

HARED JUST. (Aug. 24, 2016), http://

www.sharedjustice.org/international-justice/2016/8/24/the-crisis-of-global-poverty [https://

perma.cc/6CV9-H7SB]. (“For a poor person everything is terrible—illness, humiliation,

shame. We are cripples; we are afraid of everything; we depend on everyone. No one needs

us. We are like garbage that everyone wants to get rid of.”).

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

412 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

failure to meet responsibilities that results in a profound loss of

individual dignity and feelings of shame and inferiority.

152

Death

is a time when grief may be compounded by an inability to bear the

expenses associated with death service expenses—expenses that

are often unplanned, unconsidered, and unavoidable. Selecting the

less expensive option may not be the easiest path for those survi-

vors for whom the process of memorializing and honoring the dead

reflects societal and cultural beliefs and values.

153

Funerary prac-

tices and rituals may be sacred and implicitly meaningful to the

living, and a less expensive departure tradition can be perceived

as disrespecting the deceased (or the memory of the deceased). Mil-

lions of low- and middle-income families struggle with oft-dis-

cussed issues of food, housing, or healthcare insecurity, and Part

IV considers the way in which the undiscussed expense of death

care services may also bear upon these families.

Consider the following example: Family X consists of five peo-

ple—two minor children, a father, a mother, and a grandmother.

Family X’s poverty threshold in 2018 is $30,718. In 2018, the fam-

ily has three earners—Mother $12,000, Father $8000, Grand-

mother $8000—with a cumulative annual family income of

$28,000. Upon the death of Grandmother, this family will lose

$8000 in income annually. The family must also contend with the

challenge of paying for the disposition of Grandmother’s remains

with a household income that falls below applicable poverty guide-

lines at the time of Grandmother’s death. The median prices for

the most common death services options are set forth in Table 1

below.

154

152. Id.

153. Kelli Swazey, Life That Doesn’t End with Death, T

EDMED (Apr. 2013), https://www.

ted.com/talks/kelli_swazey_life_that_doesn_t_end_with_death [https://perma.cc/5V8Y-C9

2H].

154. This table sets forth median costs in 2019 provided by the NFDA. Costs, N

AT’L

FUNERAL DIRECTORS ASS’N (July 18, 2019), https://www.nfda.org/news/statistics [https://

perma.cc/PA3D-VMJG].

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2021] FUNERAL POVERTY 413

TABLE 1

Assuming that Family X has had the benefit of Grandmother’s

income in the year in which she passes away, the cost of a funeral

with viewing and burial for Grandmother will exceed 32% of the

family’s gross income with a burial vault and 27.2% without. These

figures do not include additional and necessary cemetery fees

155

for

a traditional burial, and also assume that Grandmother is not a

veteran.

156

Additional fees associated with traditional burial will

add hundreds or thousands of dollars to the bill: fees for a grave

155. Guide to Cemetery Purchases, FUNERAL CONSUMERS ALLIANCE., https://funerals.

org/?consumers=consumers-guide-cemetery-purchases/ [https://perma.cc/UQZ8-J28N].

156. Id. (“Burials are free for vets and their spouses in national veterans[’] cemeteries

and free or nearly free in many state-run ones. Beware of unscrupulous sales people who

target veterans—they may offer a free grave to the vet but charge an inflated rate for the

spouse, or an exorbitant fee for opening and closing the grave.”).

Includes

Does Not

Include

Median

Cost

Adult Funeral

with Viewing

and Burial

Viewing, Burial,

Burial Vault

Cemetery

Costs such

as plot,

monuments

or markers $9,135

Adult Funeral

with Viewing

and Burial Viewing, Burial

Cemetery

Costs such

as plot,

monuments

or markers $7,640

Adult Cremation

with Viewing

Rental Casket,

Alternative

Cremation

Container

Cremation

Casket or

Cemetery

Costs $6,295

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

414 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

marker or a monument (ranging from $300 to $3000),

157

interment

fees

158

(averaging $350 to $3000), possibly a burial permit (depend-

ing on local law),

159

the burial plot (averaging from $200 to $2000

in a public cemetery and $2000 to $5000 in a private cemetery)

160

or mausoleum,

161

and the one-time or annual charge to maintain

or care for the space.

162

With these added cemetery costs, the aver-

age American funeral with burial is estimated as exceeding

$9000.

163

Death care service expenses are generally the third-largest ex-

penditure in one’s lifetime, ranking behind homes and cars.

164

The

impact of this kind of spending can be staggering. Table 2 provides

2018 household income in the United States broken into quintiles

(showing the highest dollar amount in each quintile along with the

lowest dollar amount earned by the top 5% of households) by

race.

165

157. The Average Cost of a Burial Plot (and Other Facts You Need to Know), LOVE LIVES

ON, https://www.loveliveson.com/the-average-cost-of-a-burial-plot-other-facts-you-need-to-

know/ [https://perma.cc/3C5M-SGNF].

158. Id. (“These are the fees that cemeteries charge to open and close the grave, to re-

place the sod, and to complete paperwork required for legal records. The average cost of

interment fees in a public cemetery is $350 to $1,000, but in a private cemetery, $600 to

$3,000. If you are considering purchasing family plots, interment fees become a very im-

portant consideration. In some cemeteries, these fees can exceed the cost of the family plots

themselves.”)

159. Id.

160. Id.

161. Belinda McLeod, Mausoleum Burial Basics: Pros, Cons & Cost, C

AKE (Oct. 9, 2019),

https://www.joincake.com/blog/mausoleum-burial-basics-pros-cons-cost/ [https://perma.cc/3

2Z3-JAH4] (noting that private mausoleums start around $25,000 for a private outdoor

mausoleum, and average $4000 for a public mausoleum).

162. See Guide to Cemetery Purchases, supra note 155.

163. R

ESOR, supra note 2, at 106.

164. Id.

165. This data has been gathered from the United States Census Bureau. See Historical

Income Tables: Households, U.S.

CENSUS BUREAU, https://www.census.gov/data/tables/time

-series/demo/income-poverty/historical-income-households.html [https://perma.cc/9V64-9N

W7].

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 415

TABLE 2

Poverty guidelines in the United States are issued annually in

the Federal Register by the Department of Health and Human Ser-

vices, which publishes a fixed dollar value (varying by family size

and composition) as the threshold for poverty determinations.

166

the United States, the official poverty rate in 2018 was 11.8%, or

38.1 million people.

167

Those aged 65 and older suffered from a pov-

erty rate of 9.7%.

168

Poverty rates in the United States trend sig-

nificantly higher for women and persons of color. In 2018, the pov-

erty rate for females and males was 12.9% and 10.6%,

respectively.

169

The poverty rate for primary families with an un-

married female head of household was 24.9% (or 3.7 million fami-

lies)—as compared to an overall poverty rate for primary families

of 9%.

170

The poverty rates by race are as follows: White (non-His-

panic) 8.1%, Black 20.8%, Hispanic 17.6%.

171

To the extent that

166. See JESSICA SEMEGA, MELISSA KOLLAR, JOHN CREAMER & ABINASH MOHANTY,

INCOME AND POVERTY IN THE UNITED STATES: 2018, at 49 (2020), https://www.census.

gov/content/dam/Census/library/publications/2019/demo/p60-266.pdf [https://perma.cc/8H

G5-KLBU].

167. Id. at 12.

168. Id. at 15.

169. Id.

170. Id. at 17.

171. Id. at 13.

Lowest Second Third Fourth Fifth

Lower

Limit of

Top 5%

All $25,600 $50,000 $79,542 $130,000 $130,001+

Over

$248,278

White $28,211 $52,444 $83,125 $133,722 $133,723+

Over

$255,299

Black $15,600 $31,800 $53,000 $89,528 $89,529+

Over

$172,110

Hispanic $22,480 $40,034 $63,260 $100,022 $100,023+

Over

$185,419

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

416 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

death service expenses disproportionately weigh upon those in pov-

erty, the expenses subtly and indirectly discriminate (in a way that

is sometimes referred to as second-order discrimination) against

persons of color and women.

172

And while this Article does not sug-

gest that there is an intent to discriminate, it is nonetheless im-

portant to highlight the persistently harmful way in which death

care service expenses weigh upon historically marginalized people.

When a loved one dies, there is a symbolic and a practical re-

sponse—both of which have associated expense.

173

Death care in

the United States is an area of conspicuous consumption on which

lower-income families spend far more than high-income families,

relative to total expenditures, in every year studied since 1996.

174

In 2014, the top 1% spent significantly less in absolute dollars than

everyone else, the middle class fell in line with national averages,

and the poor spent a “26% greater share of total expenditures than

the national average.”

175

In fact, the richer and/or more educated

that one is, the more likely they are to be cremated versus buried,

and cremation involves considerably less expense.

176

The reason for this distortion in spending by lower-income fam-

ilies is unclear. Historically, Edwardian and Victorian English fu-

nerals were an important display of status for the poor, who existed

in a society with few, precious avenues to do so.

177

Another theory

is that there have historically been higher levels of social capital in

poorer communities,

178

and consequently, more money is spent on

172. See Charles Lawrence III, Unconscious Racism Revisited: Reflections on the Impact

and Origins of “The Id, the Ego, and Equal Protection,” 40 CONN. L. REV. 931, 948 (2008) (“I

hoped that by pointing out that we were all infected with racism I would at least remove the

very stigma that caused my friends to deny their racism, and at the same time help them

recognize that the injury of racism was found in symptomatic material conditions, including

inequalities of wealth, employment, schooling, health, incarceration, etc., and in the ideol-

ogy that produced and justified those symptomatic material conditions.”).

173. K

ASTENBAUM, supra note 43, at 262.

174. R

ESOR, supra note 2, at 106; see also ELIZABETH CURRID-HALKETT, THE SUM OF

SMALL THINGS: A THEORY OF THE ASPIRATIONAL CLASS 33 (2017).

175. C

URRID-HALKETT, supra note 174, at 33.

176. Id. at

34.

177. Id. at

33–34.

178. Surviving relatives may conflate unnecessary spending on funerals, burials, or cre-

mations as necessary to honor the deceased. See, e.g., Annie Nova, As the Cost of Dying

Rises, More Families Try Crowdfunding for Funerals, CNBC

(Dec. 7, 2019), https://www.

cnbc.com/2019/12/07/more-families-are-turning-to-crowdfunding-to-pay-for-funeral-costs.h

tml [https://perma.cc/5WJA-FXJA] (“Tina Middaugh, Bowen’s older sister, was determined

to give him a meaningful memorial service. ‘I couldn’t imagine people walking in and not

knowing people loved him,’ [she] said.”).

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 417

death services for performative reasons, as a way of demonstrating

respect for the deceased to the community at large.

179

Regardless

of the underlying theory, it is clear that for a working-class family

in the third income quintile of Table 2, spending the national aver-

age of almost $9,000 for a funeral and burial service is financially

crippling. This type of expense amounts to 10.82% of the before-tax

annual income of the highest earner in the third quintile for White

families, 16.98% for Black families, and 14.22% for Hispanic fami-

lies.

TOWARDS SOLUTIONS

The FTC produced a 526-page report in 1978 titled Funeral In-

dustry Practices, highlighting the problematic nature of a signifi-

cant financial transaction being intertwined with grieving.

180

The

“extreme vulnerability of funeral purchasers” is the result of “wide-

spread ignorance of relevant information and . . . the disabling ef-

fects of grief and bereavement.”

181

Although this report is more

than forty years old, the problematic nature of the underlying

transaction has not changed: the consumer must make important,

expensive decisions while grieving, usually operating within se-

vere time constraints and forced to move quickly, in a marketplace

in which few consumers have any expertise.

182

Ignoring death until

the moment one shuffles off the mortal coil is messy, expensive,

and shifts the consequences of an extraordinarily burdensome ex-

pense onto grieving loved ones. The purpose of Part V is to take on

the design of consumer-protective and norm-shifting changes that

may be implemented to meaningfully address funeral poverty in

the United States.

Addressing the issue of funeral poverty requires more than a

simple focus on increased funding, and instead requires proposed

changes that will be most effective because they are targeted at

important intersections where social norms have the most influ-

ence over consumer behavior. Set forth below, this Article offers a

179. CURRID-HALKETT, supra note 174, at 34.

180. B

UREAU OF CONSUMER PROT., supra note 114, at 1.

181. Slocum, supra note 148 (quoting B

UREAU OF CONSUMER PROT., supra note 114, at

1).

182. See Slocum & Brobeck, supra note 146 (“[F]or a very high percentage of funeral

home services, it is [the consumer’s] first purchase, so they have no relevant buying experi-

ence.”).

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

418 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

framework of short- and long-term interventions aimed at disrupt-

ing entrenched custom, with an eye towards driving (directly or

indirectly) affordability and accessibility for the lower- and middle-

income consumer.

A. Consumer Protection Through Increased Transparency

A fundamental way in which to ameliorate the issue of funeral

poverty is through consumer-protective measures that create

transparency. Transparency is the hallmark of a properly function-

ing marketplace, increasing efficient allocation of resources and

decreasing the risk of unsustainable or corrupt business prac-

tices.

183

In the context of death services, the economics of transpar-

ency inure to the benefit of the consumer over the vendor—mean-

ing that changes to regulation or law that facilitate transparency

may be easier said than done because pushback from death service

providers is likely.

184

There are several important areas in which

transparency must improve to protect the consumer, including

closing the gaps in the Funeral Rule discussed in section III.B and

other transparency measures that include possible disclosure of

beneficial ownership of service providers.

For some time, consumer advocates have called upon federal reg-

ulators to close gaps in the Funeral Rule.

185

As discussed above,

the current FTC practice of refusing to disclose the names of law-

breaking funeral homes to the public is a privilege that no other

industry under FTC jurisdiction is afforded.

186

Further, the Fu-

183. Alex Konanykhin, How Transparency Can Help the Global Economy Grow, WORLD

ECON. F. (Oct. 10, 2018), https://www.weforum.org/agenda/2018/10/how-transparency-can-

help-grow-the-global-economy/ [https://perma.cc/JYV7-3TU6].

184. There is precedent for this kind of pushback. See A

LAN R. KEMP, DEATH, DYING, AND

BEREAVEMENT IN A CHANGING WORLD 128–29 (Routledge 2d ed. 2019) (noting that pushback

from the funeral industry caused a softened version of the 1984 Funeral Rule to be adopted

in 1994).

185. See Concurring Statement of Commissioner Rebecca Kelly Slaughter Regarding the

Request for Comment on the Funeral Rule: Commission File No. P034410 (Feb. 4, 2020),

https://www.ftc.gov/system/files/documents/public_statements/1565585/2020-2-3_funeral_

rule_rks_statement.pdf [https://perma.cc/MH9Q-KVVK] (requesting comments that high-

light gaps in protections and how best to fill them).

186. Boguslaw, supra note 124 (quoting Statement of Commissioner Rohit Chopra Re-

garding the Request for Comment on the Funeral Rule: Commission File No. P034410 (Feb.

4, 2020)).

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 419

neral Rule’s failure to require online pricing disclosure is inade-

quate for today’s technologically oriented marketplace.

187

Infor-

mation must be made readily available for the grieving consumer,

who is less likely to engage in price-conscious behavior and bound

by time-constrained decision-making.

188

Informal studies have

found that death service companies that list pricing online are as

much as 30% cheaper than those who refuse to disclose online.

189

As discussed above, a substantial minority of death care service

providers actually disclose pricing online.

190

Transparency through digital price disclosure is an obvious, low-

cost consumer-protection mechanism that has attracted technology

investment into the death service space.

191

Two startup companies

(Funeralocity and Parting.com)

192

developed websites to enable

consumers to shop and compare a range of death services pricing,

in much the same way a consumer would book a flight, rental car,

or hotel room on a price comparison website.

193

Although innova-

tors identified a consumer need, the industry resistance to pricing

transparency may prove insurmountable for these startups unless

digital pricing disclosures are required by law (with no loopholes

or exemptions that swallow the underlying disclosure rule).

194

187. Carrns, supra note 143; see also Ann Carrns, Should Funeral Homes Be Required

to Post Prices Online?, N.Y.

TIMES (June 12, 2020), https://www.nytimes.com/2020/06/12/

your-money/funeral-homes-prices-online.html [https://perma.cc/73V7-WAG6].

188. Maya Lora, The Cost of Dying Is Shrouded in Mystery. Funeralocity Puts Funeral

Prices Online, M

IAMI HERALD (Aug. 12, 2019, 6:00 AM), https://www.miamiherald.com/

news/business/article231844288.html [https://perma.cc/TWR8-AAM6] (quoting Joshua Sol-

cum, Director of the Funeral Consumers Alliance, as stating, “‘Funeral directors have had

a very, very easy ride . . . . Most of their customers come in a blank canvas. They don’t know

what the competition is charging.’” Such companies . . . ‘can’t keep living in 1950 forever.’”).

189. Sforza, supra note 149 (“For too long, the funeral industry has wanted price not to be

a factor at all, because price-conscious consumers are much less easy to ‘sell’ than unaware

consumers who are compromised by grief.”).

190. Carrns, supra note 143 (“Scott Gilligan, general counsel with the funeral directors

association, said about 20 percent of its members—generally those in larger, competitive

markets—posted prices online, but the association has not seen major demand for it from

consumers.”).

191. See id. (“[T]he industry opposes mandatory online pricing and said the decisions

should be left to individual businesses.”).

192. Id. (“Ed Michael Reggie, founder of Funeralocity, said the site let shoppers search

prices at funeral homes in 100 major markets and awarded ‘excellence’ status to funeral

homes that met its standards and fully disclosed prices. Funeralocity, he said, earns a re-

ferral fee when users book services with funeral homes that have that status. The website

says those homes agree to offer discounts to users who choose them through Funeralocity.”).

193. See Lora, supra note 188.

194. See Carrns, supra note 143 (“Mr. Slocum said posting prices online would make

enforcement of the rule far easier, since regulators are able to visit just a small fraction of

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420 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

Another interesting area of opacity involves the ownership of fu-

neral homes in the United States. The largest funeral home chain

in the United States is publicly traded Service Corporation Inter-

national (“SCI”)

195

(known also by its public-facing brand name

Dignity Memorial), which handled the funerals of Presidents

Reagan, Bush, and Ford.

196

SCI booked sales of $3.2 billion in 2019,

and averaged $10,000 in revenue on each of the 319,000 deceased

that it handled (or 12% of the deaths in the United States in

2019).

197

SCI began acquiring mom-and-pop funeral homes in the

1960s and eventually started acquiring its largest competitors—

including the second-largest death care services company in North

America in 2006 (Alderwoods Group),

198

the fifth-largest death

care services company in 2010 (Keystone North America),

199

70%

of the nation’s largest direct cremation company in 2011 (The Nep-

tune Society, Inc.),

200

the remaining 30% interest in Neptune in

2013 and 2014,

201

and the second-largest chain of funeral homes

and cemeteries in North America in 2013 (Stewart Enterprises,

Inc., for $1.4 billion).

202

With an estimated 16% share of the death

the country’s funeral homes to check compliance.”).

195. According to SCI’s 2020 10-K annual report, as of December 2019, SCI operates

1471 funeral service locations and 482 cemeteries (including 290 combination funeral ser-

vices-cemetery locations), across 44 states, the District of Columbia, Puerto Rico, and Can-

ada. Serv. Corp. Int’l, Annual Report (Form 10-K) (Dec. 31, 2019).

196. Christopher Helman, How the Pandemic Is Killing the Death Business, F

ORBES

(2020), https://www.forbes.com/sites/christopherhelman/2020/04/21/how-the-pandemic-is-

killing-the-death-business [https://perma.cc/D7GG-XCKJ].

197. Id.

198. Serv. Corp. Int’l, Annual Report (Form 10-K) (Dec. 31, 2019).

199. Id.

200. Id.

201. Id.

202. Id.; FTC Puts Conditions on Service Corporation International’s Proposed $1.4 Bil-

lion Acquisition of Rival Funeral and Cemetery Services Provider, F

ED. TRADE COMMISSION

(Dec. 23, 2013), https://www.ftc.gov/news-events/press-releases/2013/12/ftc-puts-conditions-

service-corporation-internationals-proposed [https://perma.cc/BS4A-7C8N].

The Jewish community in Washington, D.C., is among those who are concerned

about the merger. “Our community’s funeral home is being taken over by this

giant conglomerate,” said Louise Chatlynn, who works with her synagogue’s

burial society in Maryland. “It’s jacking up the price and coming between the

community and the bereaved.” Chatlynn and Dash were among a small group

of protesters outside the FTC’s Washington headquarters on Tuesday. On the

sidewalk outside the hulking gray building sat a simple pine casket with a

printed sign attached to the front reading, “I CAN’T AFFORD TO DIE.”

Max Strasser, Nation’s Largest Funeral Company Keeps Growing amid Complaints, Pro-

tests, A

L JAZEERA AM. (Nov. 26, 2013, 5:00 AM), http://america.aljazeera.com/articles/2013/

11/26/amid-complaints-protestsnationslargestfuneralcompanykeepsgrowing.html [https://

perma.cc/HZ5B-HBEV].

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 421

services market, SCI may further expand through the purchase of

local funeral homes that find themselves constrained because of

the COVID-19 pandemic.

203

SCI’s stated business plan is to capitalize upon the “goodwill and

heritage” of the local family-owned funeral homes that it purchases

by continuing operations under their original names.

204

The stated

business plan, in effect, exploits the consumer’s belief that they are

doing business with a local company—when, in fact, consumer ad-

vocates and funeral industry experts state that SCI funeral homes

are among the most expensive.

205

A study from the Consumer Fed-

eration of America found that median prices at SCI funeral homes

were 47 to 72% higher.

206

It was also disclosed in this report that

no SCI funeral homes disclosed prices online.

207

Transparency geared towards protection of the consumer would

impose some type of digital-disclosure requirement that the local

funeral home disclose that it is not locally owned, despite messag-

ing or branding to that effect. A creeping consolidation is occurring

within the death services industry that offers economies of scale to

the provider that may not be passed to the consumer because price

disclosures are not readily accessible, and the grieving consumer

does not engage in price comparison.

208

The issue of industry con-

solidation is clearly outside of the scope of this Article, though it is

worthwhile to pause to consider the benefit of transparency to the

consumer with regard to entity ownership.

209

203. Serv. Corp. Int’l, Annual Report (Form 10-K) (Dec. 31, 2019).

204. Id.

205. Strasser, supra note 202.

206. J

OSHUA SLOCUM, FUNERAL CONSUMERS ALL. & CONSUMER FED’N OF AM., DEATH

WITH

DIGNITY? A REPORT ON SCI/DIGNITY MEMORIAL HIGH PRICES AND REFUSAL TO

DISCLOSE THESE PRICES 2 (2017), https://consumerfed.org/wp-content/uploads/2017/03/3-6-

17-Funeral-SCI_Report.pdf [https://perma.cc/45HN-39VK].

207. Press Release, Consumer Fed’n of Am.,

Nation’s Largest Funeral Home Company

Charges High Prices and Refuses to Disclose These Prices on Their Websites (Mar. 6, 2017),

https://consumerfed.org/press_release/nations-largest-funeral-home-company-charges-high

-prices-refuses-disclose-prices-websites/?mod=article_inline [https://perma.cc/22GT-T44C].

208. Mona Chalabi, The Rising Cost of Not Living, N.Y. REV. BOOKS (Dec. 16, 2019, 12:16

PM), https://www.nybooks.com/daily/2019/12/16/the-rising-cost-of-not-living/ [https://perma

.cc/9S5H-7G4W] (“What those families rarely realize is that their local funeral home, once

run as a ‘mom-and-pop’ family business, is now probably owned by a Wall Street firm. Ser-

vice Corporation International, or SCI, for example, operates 1,477 funeral service locations

and 483 cemeteries across the country, and is worth $13.3 billion . . . . SCI charges between

40 percent and 75 percent more for its services than independent funeral homes do.”).

209. Perhaps disclosure would come in the form of a statement on the website owner of

a death services provider (which would be defined for purposes of this Article as exercising

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422 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

B. Normalizing Environmentally Friendly Funeral and Burial

Options

The death care services industry is an industry with more than

$20 billion in annual economic activity, employing around 130,000

people, and disposing of more than 1.5 million deceased per year.

210

Statistics gathered and posted by a funeral director suggest that

the gross profit margin for the industry is 62.5% (though the profit

margin for an independent funeral home likely runs 10% to

30%).

211

The funeral director plays an extraordinarily important role that

can also be self-serving by virtue of position—being an information

conduit affords an opportunity to shape funeral custom and con-

sumer demand within this space.

212

And to the extent that funer-

ary practice has shaped consumer demand in the United States, it

has done so in such a way that environmentally toxic practices

have become a norm. Although eco-friendly practice is not the focus

of this Article, there is a relevant existential equity to “greening up

death” when and if green approaches will also reduce expense. To

that end, reducing unnecessary expense and shrinking the envi-

ronmental footprint align with regard to two funeral customs in

the United States: use of embalming and vaults.

control and/or owning more than 33% equity interest, directly or indirectly). This type of

disclosure is modeled off the Corporate Transparency Act of 2019, passed by the United

States House of Representatives on October 22, 2019. See Carl A. Fornaris & Marina Olman-

Pal, U.S. House Passes Bill That Would Require Disclosure of Beneficial Owners of U.S.

Corporations and Limited Liability Companies, N

AT’L L. REV. (Oct. 29, 2019), https://

www.natlawreview.com/article/us-house-passes-bill-would-require-disclosure-beneficial-ow

ners-us-corporations-and [https://perma.cc/5S45-K44W].

210. Perianne Boring, Death of the Death Care Industry and Eternal Life Online, F

ORBES

(Apr. 25, 2014, 8:00 AM), https://www.forbes.com/sites/perianneboring/2014/04/25/the-deat

h-of-the-death-care-industry-and-eternal-life-online/ [https://perma.cc/9VBC-8YDE].

211. Caleb Wilde, 10 Terrifying Things About Funeral Homes You Didn’t Know: A Re-

sponse, C

ONFESSIONS FUNERAL DIR. (Aug. 4, 2017, 4:49 PM), https://www.calebwilde.com

/2017/08/10-terrifying-things-about-funeral-homes-you-didnt-know-a-response/ [https://per

ma.cc/XL2H-QX79]; see also J

ESSICA MITFORD, THE AMERICAN WAY OF DEATH REVISITED 70

(Vintage Books 2000) (suggesting the undertaker pockets “slightly more than half of the

funeral dollar,” supporting an entire industry of “cemeteries, florists, monument makers,

[and] vault manufacturers.”).

212. M

ITFORD, supra note 211, at 78 (“Without question, the tremendous advancement

in funeral customs in America must be credited to the funeral director and not to the de-

mands of the public, not even ourselves. He has carried on assiduously an educational cam-

paign which has resulted indirectly in a public desire for funeral sentiment and memoriali-

zation.”).

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2021] FUNERAL POVERTY 423

Embalming is a violent process whereby, for lack of a better de-

scription, we pickle and preserve our loved ones.

213

Early Chris-

tians and Jews frowned on the Egyptian preoccupation with resto-

ration and preservation as a pagan custom, and it did not gain

traction as a funerary practice until this last century.

214

In modern

practice, it is not used for the long-term preservation of the dead,

215

but instead to preserve cosmetic appearance through funeral ser-

vices.

216

Embalming is only required by law in the United States in

special, narrow circumstances, on a state-by-state basis.

217

Ala-

bama and Alaska require embalming when a body crosses the state

line and leaves the state.

218

California, Idaho, Kansas, Minnesota,

and New Jersey mandate embalming when a body crosses state

lines via common carrier such as train or airplane.

219

Many states

have a time period after which a body must be embalmed or refrig-

erated.

220

Kansas requires that embalming be done for mausoleum

213. Stephen E. Nash, The Weird, Wild World of Mortuary Customs, SAPIENS (Mar. 8,

2018), https://www.sapiens.org/column/curiosities/embalming-culture-mortuary-customs/

[https://perma.cc/9H38-MGGA].

Embalming requires at least 10 steps, including massage to alleviate rigor

mortis, “setting the face” (which requires wiring the jaw shut, stitches to hold

the lips in place, and “caps” for the eyes, which I still don’t understand) to cre-

ate the desired expression, and detailed attention to specific problem areas in

which gases may have built up within the body. Embalming is an invasive and

violent process that results, quite amazingly, in a corpse that appears at rest

and at peace. Morticians expertly create a doppelgänger, one that friends and

family can view with minimal shock and dismay. Embalming produces an aes-

thetic veil, a membrane, behind which the violence of death and natural decay

are hidden.

Id.

214. M

ITFORD, supra note 211, at 143–44.

215. Id. at 54–55 (noting that a body can be preserved for years, “depending upon the

strength of the fluids used, and the temperature and humidity of the surrounding atmos-

phere. Cadavers prepared for use in anatomical research may outlast the hardiest medical

student. The trouble is, they don’t look very pretty; in fact they tend to resemble old shoe

leather.”).

216. Id.

217. Embalming is required when a body crosses state lines from Alabama or Alaska, or

when a body leaves California, Idaho, Kansas, Minnesota, or New Jersey by common carrier

(airplane or train). Embalming: What You Should Know, F

UNERAL CONSUMERS ALLIANCE

(Nov. 26, 2007), https://funerals.org/what-you-should-know-about-embalming/ [https://perm

a.cc/RJS5-AGPN]; The FTC Funeral Rule, F

ED. TRADE COMM’N (July 2012), https://www.

consumer.ftc.gov/articles/0300-ftc-funeral-rule [https://perma.cc/FD7B-KKLH].

218. A

LASKA ADMIN. CODE tit. 7, § 35.100(c); ALA. CODE § 22-19-2.

219. C

AL. HEALTH & SAFETY CODE § 7355(a); IDAHO CODE § 54-1120; KAN. STAT. ANN. §

63-3-11; MINN. STAT. § 149A.93(7); N.J. ADMIN. CODE § 8:9-1.7.

220. See, e.g., A

LA. CODE § 34-13-117 (24 hours); MO. CODE REGS. ANN. tit. 20, § 2120-

2.070(16) (24 hours); M

ONT. ADMIN. R. 37.116.103 (48 hours); S.D. ADMIN. R. 20:45:02:07 (24

hours); 035.0001-4 WYO. CODE R. § 5 (36 hours).

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424 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

interments.

221

In Minnesota, embalming is required (in limited cir-

cumstances) for a public viewing.

222

Many funeral directors insist that embalming is necessary for

reasons related to mental health or hygiene.

223

As concerns the for-

mer, embalming as a type of grief therapy to ease mental health

issues associated with a loss is unsupported by science,

224

and ac-

tually raises questions about whether our modern distance from

death is profoundly unhealthy (as discussed below).

225

The claim

that embalming is necessary for reasons of public sanitation or hy-

giene is also unsubstantiated.

226

Though embalming may be a com-

mon practice in the United States and Canada,

227

it is not the norm

in many (if not most) industrialized nations of the world, and no

problems connected to the burial of natural remains are arising.

228

221. KAN. ADMIN. REGS. § 63-3-16.

222. M

INN. STAT. § 149A.91(3).

223. M

ITFORD, supra note 211, at 54–55.

224. Sallie Tisdale, How a Common Death Ritual Made It Harder to Mourn the Loss of

My Mother, T

IME (Mar. 4, 2019, 8:00 AM), https://time.com/5542117/death-embalming-pres

ervation-cremation-mourning/ [https://perma.cc/M4DA-K346].

[A]fter my mother had been embalmed, we returned . . . . I could see my mother

in the coffin across the room, and for one very long and strange moment, I

thought she was alive again. She looked better than she had for years. Her skin

was pink and smooth; her hair, nicely groomed. Even her fingernails were

done, and she had a very small smile on her face. I knew she was dead . . . .

But at that moment, I thought she might sit up and look at me, and a lot of my

hard-won acceptance was lost. More than thirty years later, I still resent what

was done to her, and to me . . . . Embalming and the so-called restorative arts

are about denial and, as a result, they unwittingly cause us greater pain.

Id.

225. Jones, supra note 26 (“There may be no other rite of passage around which we have

become more passive. We carefully vet the doctors or midwives who will deliver our babies.

We pore over options for wedding venues and officiants. But often we don’t plan for death.

So when it arrives, we take what’s easily available . . . . If death practices reveal a culture’s

values, we choose convenience, outsourcing, an aversion to knowing and seeing too much”).

226. Embalming: What you Should Know, supra note 217 (“Embalming provides no pub-

lic health benefit, according to the U.S. Centers for Disease Control and Canadian health

authorities. Hawaii and Ontario forbid embalming if the person died of certain contagious

diseases.”).

227. Id.

228. See M

ITFORD, supra note 211, at 57.

‘There are several advantages to being dead . . . . You don’t excrete, inhale,

exhale, or perspire.’ The body of a person who has died of a noncommunicable

illness, such as heart disease or cancer, presents no hazard whatsoever . . . .

[In the case of communicable illness, epidemics have been caused by] seepage

from graves into the city water supply . . . . The solution, however, lies in city

planning, engineering, and sanitation, rather than in embalming, for the or-

ganisms which cause disease live in the organs, the blood, and the bowel, and

cannot all be killed by the embalming process.

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In fact, the European Union (“EU”) has placed restrictions on the

use of formaldehyde that may prevent embalming in its present

form in the EU

229

and possibly the United Kingdom.

230

The truth of the matter is that abandoning embalming may put

an end to the expense of the open-casket funeral.

231

Embalming is

big business in the United States, with one mortuary textbook au-

thor describing the process as “the very foundation of modern mor-

tuary service—the factor which has made the elaborate funeral

home and lucrative funeral service possible.”

232

An open-casket fu-

neral creates an opportunity for the funeral home to sell a casket

and a splendiferous and magnificent funeral package.

233

Death ser-

vices have been professionalized, and with professionalization

comes commodification: embalming, flowers, caskets, grave vaults

or liners, hearses, mourning clothes, catering, “perpetual care”

cemetery plots, and even glamour—along with false narratives to

upsell the customer.

234

Id.

229. Stephen Gardner, Embalmers Face Challenge with EU Formaldehyde Limit,

LOOMBERG L. (Mar. 27, 2019, 1:34 PM), https://news.bloomberglaw.com/environment-and-

energy/embalmers-face-challenge-with-eu-formaldehyde-limit [https://perma.cc/8M8B-HT

36] (“Embalmers could face the toughest challenge from new European Union Limits on

workplace exposure to cancer-causing substances approved by the European Parliament

March 27 [2019].”).

230. Cormac Connelly-Smith, ‘Natural Death’ Funeral Directors Welcome EU Formalde-

hyde Ban,

TALKRADIO (Nov. 23, 2018), https://talkradio.co.uk/news/natural-death-funeral-

directors-welcome-eu-formaldehyde-ban-18112328939 [https://perma.cc/64YB-PWG8] (fore-

casting that “[i]f the UK remains in the customs union after leaving the EU on March 29

2019, it would be expected to adopt any EU amendments into law.”).

231. Victoria Loe, Extreme Unctuousness, T

EX. MONTHLY (May 1981), https://www.texas

monthly.com/articles/extreme-unctuousness/ [https://perma.cc/HVL5-4LVR].

The universal human picklement—well, not universal, really, for it is a pecu-

liarly American custom, shooting up the dead with preservatives . . . . Sure,

the embalmer and all his craft can keep you odorless and bloat-free long

enough for your cousins from Schenectady to fly in for one last loving glimpse.

And embalming does allow your grieving family to buy you a special burial

suit, lay you in a bronzed, silk-lined coffin, flank you with banks of hothouse

posies, and install you in the hushed stateliness of the viewing chamber, where

they can gaze upon you to their heart’s content.

Id.

232. M

ITFORD, supra note 211, at 142.

233. Id. at 63–64. (“If embalming is taken out of the funeral, then viewing the body will

also be lost. If viewing is lost, then the body itself will not be central to the funeral. If the

body is taken out of the funeral, then what does the funeral director have to sell?”).

234. A fee for perpetual care is a requirement at many cemeteries. Linnea Crowther,

How Cemeteries Work: Questions About Cemetery Grounds, L

EGACY.COM (Oct. 29, 2018),

https://www.legacy.com/advice/how-cemeteries-work-questions-about-cemetery-grounds/

[https://perma.cc/E3JH-ZX6C]. Perpetual care fees may be assessed with an annual fee or a

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426 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

It is possible to have a funeral “event” to honor the deceased

without the use of embalming,

235

and the rest of the world manages

to do so.

236

Natural remains may be preserved for up to three

months if maintained between thirty-eight and forty-two degrees

Fahrenheit.

237

Consequently, alternatives to embalming that

would still facilitate a viewing include refrigeration and cooling

equipment such as gel packs, ice packs, or dry ice.

238

Refrigeration

equipment such as lockers and beds may be used by funeral homes,

and off-site facilities with refrigeration equipment are available to

be contracted.

239

Alternatively, cooling agents such as dry ice

240

may be placed beneath the body and changed every twenty-four

hours.

241

In the United States, Texas is the only state where refrig-

eration is not considered an acceptable alternative to embalm-

ing.

242

one-time charge. Id. The fee pays for the maintenance and upkeep of the cemetery, but not

necessarily the individual burial site. Id. Maintenance includes things such as mowing, fer-

tilizing, and pest control. Id.

235. Nicole Archer, Funerals Are Expensive, Broken and Exploitative. They Have to

Change, CNET (May 25, 2020), https://www.cnet.com/features/funerals-are-expensive-bro

ken-exploitative-they-have-to-change/ [https://perma.cc/8BND-ZA7J] (“You want a private

viewing to say goodbye? That’ll be $725 . . . for embalming, $250 for cosmetics and $425 for

use of the space and staff. That’s over $1,000 before the funeral even starts.”).

236. Tisdale, supra note 224.

237. K

ATHERINE MARIACA-SULLIVAN , WHEN A LOVED ONE DIES 86 (2011).

238. Mica Matlack, Alternatives to Embalming, F

UNERALS 360 (May 10, 2016), https://

www.funerals360.com/blog/cremations/alternatives-to-embalming/ [https://perma.cc/FS2L-

HH9A]; Daniel Szczesniak, Embalming Alternatives That Avoid Formaldehyde, USU

RNS

ONLINE (Jan. 16, 2017), https://www.usurnsonline.com/burial/embalming-alternatives-avo

id-formaldehyde/ [https://perma.cc/B3LJ-2B2M].

239. See Matlack, supra note 238; Preservation of the Body Before Placement in the Cof-

fin, A

SS’N FRANÇAISE D’INFORMATION FUNÉRAIRE [hereinafter Preservation of the Body],

https://www.afif.asso.fr/english/preservation.htm [https://perma.cc/8G2Z-4NRA].

240. M

ARIACA-SULLIVAN, supra note 237, at 86.

For three-day wakes, we generally use dry ice. It is extremely cold (minus 110

degrees Fahrenheit). We place it under the torso of the body and a small piece

on top so it freezes the fluids in the lungs and stomach. We have rarely seen

any fluids coming from the mouth or nose because of this. Even when the de-

ceased has purged a little brownish fluid from the mouth (again rare) it has

not upset anyone. Families often deal with far more fluids and other matter

released from the body when their loved one is in the dying process.

Id.

241. Preservation of the Body, supra note 239.

242. In Texas, no human body can be held more than 24 hours without being maintained

at a temperature within the range of 34 degrees to 40 degrees Fahrenheit or embalmed. 25

EX. ADMIN. CODE § 181.4. However, if the body is not claimed for burial immediately after

death, it must be embalmed within 24 hours. T

EX. HEALTH & SAFETY CODE ANN. §

691.025(a). But see 22 TEX. ADMIN. CODE § 203.48(a)(2)(A)(iii) (stating that “funeral provid-

ers must not represent that a deceased person is required to be embalmed for . . . [a] closed

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2021] FUNERAL POVERTY 427

It is possible that the customer will opt for the same services

with or without embalming, and dispensing with the preservation

process will not save any expense: perhaps the $750 fee

243

for prep-

aration of the deceased and embalming will merely be replaced by

a $750 fee for refrigeration.

244

Regardless, educating consumers

about an unnecessary and toxic practice is a first step in moving

death service practice away from expensive, antiquated custom—

and the consumer may take comfort in the fact that their deceased

loved one is being laid to rest without harming the environment.

A second environmentally tragic, sometimes expensive, and ar-

guably unnecessary funerary practice is the use of vaults in the

American cemetery. A burial vault is essentially a casket for the

casket—it is an outer container in which the casket is placed, so

that when the casket decomposes and disintegrates, the ground

above the grave does not cave downward.

245

These vaults are de-

signed to keep the rolling lawn of modern cemeteries level, and

from a practical standpoint, they ensure that the weight of heavy

earth-moving equipment used to dig graves does not collapse or

implode any existing graves.

246

These vaults may simply be made

of plain concrete, metal, or polystyrene,

247

or alternatively, be or-

casket funeral without viewing or visitation when refrigeration is available . . . .”). TEX.

FUNERAL SERV. COMM’N, FACTS ABOUT FUNERALS (2019), http://tfsc.texas.gov/files/

News/Facts%20About%20Funerals%20English.pdf [https://perma.cc/9H88-GH4Z] (“Texas

law does not require embalming.”).

243. In 2019, the NFDA estimated the median cost of embalming at $750. Statistics,

NAT’L FUNERAL DIRECTORS ASS’N, https://www.nfda.org/news/statistics [https://perma.cc/

X5A4-3EJ6] (last updated July 18, 2019).

244. M

ITFORD, supra note 211, at 202 (calling to discuss pricing, one funeral director

explained that if they skipped embalming at a price of $425, the consumer would instead be

charged $425 for refrigeration, and that “an unembalmed body can only be viewed by the

legal next of kin and then only for a few moments” because of potential liability for the

funeral home due to blood-borne pathogens—which is noted by the author as a “dazzling

flight[] of fancy”).

245. Michele Mohr, Standing on Solid Ground, C

HI. TRIB. (May 5, 1996), https://www.

chicagotribune.com/news/ct-xpm-1996-05-05-9605050423-story.html [https://perma.cc/45

NY-CXZT].

246. Id. (“Older grave sites had begun to sink and, as heavy machinery replaced manual

labor, graves sometimes imploded when trucks or other equipment were driven on the

grounds. Because the concrete vaults do not deteriorate like wood and are stronger—a top-

of-the-line Wilbert vault can withstand up to 7,500 pounds of pressure per square inch—the

containers prevented the formation of ridges and depressions that resulted from sinking

graves.”).

247. Ralf Heckenbach, Why Do Cemeteries Insist on Burial Vaults?, M

EMORIALS BLOG

(Mar. 18, 2013), https://www.memorials.com/blog/why-do-cemeteries-insist-on-burial-vau

lts/ [https://perma.cc/F2X2-XXE3].

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428 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

nately designed and sealed with plastic or lined with precious met-

als.

248

Burial vaults usually cost between $900 and $13,000, though

the estimated median cost of a vault by the National Funeral Di-

rectors Association in 2019 was $1495.

249

Most cemeteries consider either a burial vault or a grave liner to

be a necessity and not a luxury,

250

though interestingly, neither the

FTC, most state law,

251

nor federal law requires any type of outer

burial container for the casket.

252

The cost of a burial vault or grave

liner is not insignificant when weighed against the fact that it is

not an item required by health or safety laws but is instead a re-

quirement born of funerary custom. To the extent that consumers

wish to reduce costs, alternatives are increasingly becoming avail-

able. Conservation and natural burial sites

253

around the United

States prohibit the use of grave vaults and embalming chemicals

and require the use of biodegradable caskets (e.g., paper, card-

board, cotton, wicker, banana leaves, etc.). These spaces forego the

use of heavy equipment to mow and dig.

254

Though the natural cof-

fins degrade and collapse over time, the depression in the land may

then be filled by hand a few times over a six- to eighteen-month

period of time (because most properly constructed graves will stop

sinking within one to two years).

255

These are sustainably managed

spaces committed to reintegrating the deceased back into the

planet.

256

248. Mohr, supra note 245 (reporting buyers indicated an interest in less masculine

grave vaults, a trend which paved the way for introduction of the “Cameo Rose”—a vault

decorated with white and pink, “aimed at the female market.”).

249. See Statistics, supra note 243; How to Choose the Right Outer Burial Container:

Burial Vaults and Grave Liners,

EVERPLANS (2020), https://www.everplans.com/articles/

how-to-choose-the-right-outer-burial-container-burial-vaults-and-grave-liners [https://per

ma.cc/565K-VXWP].

250. Mohr, supra note 245.

251. Funeral Costs and Pricing Checklist, supra note 128.

252. Id. (referring to an outer burial container as an “optional good[]”).

253. Since 1993, more than 200 natural burial grounds have been established in the

United Kingdom alone, with the idea that human burial will nurture nature. T

ONY WALTER,

WHAT DEATH MEANS NOW: THINKING CRITICALLY ABOUT DYING AND GRIEVING 76 (2017).

254. Going Vault-Free—Request “No Liner” in Your Cemetery Plot, N

AT. BURIAL CO.,

https://www.naturalburialcompany.com/vault-free-burials/ [https://perma.cc/CNE5-RP9D].

255. Id.

256. Id.

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C. Preserving Dignity Through a Menu of Less Expensive Options

There is a limited menu of low-cost alternatives for lower- and

middle-class families who wish to avoid the crushing financial bur-

den of a traditional funeral and burial. In a marketplace where de-

mand is generally inflexible, with a set number of deaths per year,

developing a menu of fixed-price, high-quality, low-cost options for

death services would be a meaningful service to the grieving con-

sumer.

The richer and/or more educated that one is, the more likely they

are to be cremated versus buried, and cremation involves consid-

erably less expense.

257

To that end, the first option on any such

menu would be direct cremation. “According to the Cremation Re-

search Council, the average cost of a direct cremation is $1100.”

258

Direct cremation involves no viewing, wake, or visitation—though

a memorial service may be conducted by family or friends at some

later date.

259

The consumer is never required to purchase a casket

for cremation under the Funeral Rule,

260

thereby avoiding the ex-

pense of the single-most expensive item that one will usually pur-

chase for a traditional funeral.

261

Most funeral homes do not have

their own crematoriums, which means that a transportation fee

will likely be charged to transfer the remains, unless the services

of the crematory

262

are engaged directly after death.

263

The crema-

tory staff are usually able to handle administrative issues such as

attending to the death certificate and arranging transportation of

the deceased directly to the crematory, often at considerably less

257. CURRID-HALKETT, supra note 174, at 34.

258. What Is the Cost of Human Cremation?, C

REMATION RES., https://www.cremationr

esource.org/cremation/what-is-the-cost-of-human-cremation.html [https://perma.cc/4JQG-

ZPJ4].

259. 5 Things You Need to Know About Direct Cremation,

EVERPLANS, https://www.ever

plans.com/articles/5-things-you-need-to-know-about-direct-cremation [https://perma.cc/HJ

3Q-G5J2].

260. A crematory or funeral provider may not represent that state or local law requires

a casket for direct cremations. 16 C.F.R. § 453.3 (2020). This rule, along with other regula-

tions adopted by the FTC, is generally referred to as the “Funeral Rule.” See The FTC Fu-

neral Rule, supra note 217.

261. Funeral Costs and Pricing Checklist, supra note 128.

262. The Cremation Association of North America describes crematories and crematori-

ums as “[t]he building[s] that house[] the cremation chamber(s). [They] can be . . . building[s]

that serve[] this one function or . . . multi-purpose building[s] that also contain[] adminis-

trative offices, mortuary preparation rooms, or cemetery maintenance facilities.” Cremation

Process, C

REMATION ASS’N N. AM., https://www.cremationassociation.org/page/Cremation

Process

[https://perma.cc/4BDJ-3ZA9].

263. What Is the Cost of Human Cremation?, supra note 258.

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430 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

expense than if a funeral director was involved.

264

This $1100 av-

erage cost of direct cremation does not include any cemetery costs,

such as the cost of interring the cremated remains in a columbar-

ium niche.

265

To the extent that the performative aspect of death

celebration is important, a memorial service can be arranged at

some later time and without involvement of the death care commu-

nity.

A second option is green burial. Although green burial is not as

inexpensive as direct cremation, it often costs far less than tradi-

tional burial, with average costs ranging from $1000 to $4000.

266

Costs for a green burial include a burial plot in a green cemetery,

applicable permits, opening and closing the grave, a simple stone

marker (or no marker at all, depending on cemetery rules), an hon-

orarium for a spiritual service, and a biodegradable burial vessel

such as a cardboard casket or a burial shroud.

267

Further, one pays

homage to the transcendental notion that one’s last act on earth

need not be to pollute it.

268

A third option is the home funeral (and possibly a home burial).

A home funeral can mean a range of different things, but generally

refers to a process in the home where the deceased is cared for by

loved ones.

269

Family or friends are responsible for keeping the re-

mains chilled, completing administrative tasks (e.g., death certifi-

cate and burial permits), and/or transporting the deceased to the

264. See id.; Death Certificates Explained, CREMATION SOC. AM., https://www.cremations

ocietyofamerica.com/death-certificates-explained/ [https://perma.cc/RN2P-LNWN]

265. What Is the Cost of Human Cremation?, supra note 258.

266. Danielle Solomon, How Much Does a Funeral Cost?, C

AKE (Jan. 29, 2020), https://

www.joincake.com/blog/cost-of-a-funeral/ [https://perma.cc/7NDT-AAFK].

267. Kate Wight, Average Cost of a Natural (Green) Burial: A Price Breakdown, C

AKE

(Oct. 18, 2019), https://www.joincake.com/blog/natural-burial-cost/ [https://perma.cc/3PJT-

Z78R]. Cardboard caskets are the least expensive option, ranging from $50 to $500. Id.

Other options include soft wood caskets such as pine, oak, or maple (starting at $500). Id.

Woven bamboo or sea grass coffins start at a cost of $1000. Id. Burial shrouds will usually

cost between $200 and $1000. Id.

268. See, e.g., Robert Schroeder, Why More Americans Are Considering ‘Green’ Funerals,

ARKETWATCH (Dec. 26, 2015, 10:55 AM), https://www.marketwatch.com/story/why-more-

americans-are-considering-green-funerals-2015-10-29 [https://perma.cc/65EK-6PJ6] (“The

self-described nature-lover, vegan and bird-watcher, who is 60 and healthy, says she aims

to do as little harm to the environment as possible.”).

269. See generally What Is a Home Funeral?, N

AT’L HOME FUNERAL ALLIANCE, https://

www.homefuneralalliance.org [https://perma.cc/96LF-XDZ].

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2021] FUNERAL POVERTY 431

burial grounds or crematory.

270

Proponents of home funerals be-

lieve that they are “simultaneously tragic and beautiful,”

271

and

being less passive in the funeral process allows more time for clo-

sure and coming to terms with the passage of a loved one.

272

Each

state has different legal requirements with regard to how a home

funeral can happen,

273

though home funerals are more or less

available in every state.

274

The concept of a home funeral runs con-

trary to the modern notion of death as an emergency and the idea

that the funeral must be a highly mediated and disinfected pro-

cess.

275

D. Increasing Death Visibility

There has been a shift over the past century from an Old Testa-

ment approach of “for dust thou art, and unto dust shalt thou re-

turn”

276

to honoring the deceased by delaying decomposition with

environmentally destructive practices that include waterproof,

satin-lined caskets, concrete grave vaults, gallons of toxic embalm-

ing fluid, and lush park-like manicured cemeteries.

277

Rejecting

270. See id.

271. N

ANCY BERNS, CLOSURE: THE RUSH TO END GRIEF AND WHAT IT COSTS US 61–62

(2011) (“In 1995, [Elizabeth’s] seven-year-old daughter Alison died in a car accident. Refus-

ing to turn over her body to strangers, Elizabeth found a way to take care of her daughter

with the help of a funeral director who showed her how. She describes the process: ‘I cared

for her at home for three days, bathing her, watching her, taking in slowly the painful reality

that she has passed from this life, and sharing my grief with her classmates and brothers

and grandparents and our wonderful community of friends, before finally letting go of her

body.’”).

272. Jones, supra note 26 (“There may be no other rite of passage around which we have

become more passive. We carefully vet the doctors or midwives who will deliver our babies.

We pore over options for wedding venues and officiants. But often we don’t plan for death

. . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an

aversion to knowing and seeing too much.”).

273. See generally Josh Slocum & Lee Webster, Quick Guide to Home Funerals by State,

AT’L HOME FUNERAL ALLIANCE, https://www.homefuneralalliance.org/state-requirements

.html [https://perma.cc/QU4P-W4VT].

274. There are exceptions, of course, such as when contagious disease is involved. Fur-

ther, some states require the involvement of a funeral director to supervise transportation

of remains and file the death certificate. For a complete list of state requirements, see id.

275. Rebecca Mead, Our Bodies, Ourselves, NEW YORKER (Nov. 23, 2015), https://www.

newyorker.com/magazine/2015/11/30/our-bodies-ourselves [https://perma.cc/YB9N-ZTP8]

(“The conventional funeral industry has given people the impression that death is an emer-

gency. ‘But death is not an emergency,’ [according to Caitlin Doughty]. ‘Death is the opposite

of an emergency. Look at the person who died—all that stress and pain is gone from them.

And now that stress and pain can be gone from you.’”).

276. Genesis 3:19 (King James).

277. See Chavez, supra note 20 (noting that design of cemeteries is done in such a way

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432 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

the notion that white patriarchy has spent the past century hiding

and profiting from a significant, deeply personal, organic event, the

“death-positive movement” in the United States has emerged.

278

Normative, traditional funerary expenditures are now being called

into question as not necessarily necessary.

As a process, death has three distinct phases: the dying person’s

acceptance at the moment of the event, the moment of farewell,

and the aftermath and mourning.

279

Death itself has largely been

banished from all phases of death in North America.

280

Although

most people know and accept that burial planning is important,

they fail to do so. Financial products and approaches to facilitate

pre-need prepayment are generally not recommended.

281

Those

who are dying are often shuttled to facilities and hospitals and

moved out of sight.

282

The ceremony of any aftermath and mourn-

ing process are also contracted out to a professional.

283

The identi-

fiable hearse has been replaced with the nondescript limousine,

and newspapers are largely unread, gradually rendering published

obituaries obsolete. We “no longer observe[] a pause,” and there is

little to no pause in the continuity of our lives to recognize the

event itself.

284

The pain of loss still exists within the hearts of loved

ones, but it has largely been eliminated from our public space. We

ignore death,

285

outsource having to deal with death ourselves, and

so as to avoid inconveniencing anyone “by reminders that corpses lay in repose 6 feet un-

der.”).

278. See id.

279. Phillippe Ariès, Invisible Death, 5 W

ILSON Q. 105, 105 (1981).

280. Id. at 106.

281. See, e.g., Selena Maranjian, Think Twice About “Pre-Need” Funeral Insurance,

OTLEY FOOL (Nov. 19, 2014, 8:00 AM), https://www.fool.com/investing/general/2014/11/19/

think-twice-about-pre-need-funeral-insurance.aspx [https://perma.cc/C25H-BYJ4]; An-

thony Martin, 11 Reasons to Avoid Prepaid Funeral Plans & What to Do Instead, C

HOICE

MUT., https://choicemutual.com/prepaid-funeral-plans/ [https://perma.cc/NJG3-UVHP] (last

updated Sept. 26, 2020); Leanne Potts, Smart Ways to Cover the Costs of a Funeral, AARP

(July 7, 2020), https://www.aarp.org/home-family/friends-family/info-2017/funeralpayment-

options-fd.html [https://perma.cc/Y3ZA-TJKS]; Should You Prepay for Your Funeral? Safer

Ways to Plan Ahead, F

UNERAL CONSUMERS ALLIANCE, https://funerals.org/?consumers

=should-you-prepay-for-your-funeral [https://perma.cc/4UG4-EFJS].

282. Ortiz, supra note 19 (noting the modern aversion to any discussion of death).

283. M

ICHAEL CLARKE, CHALLENGING CHOICES: IDEOLOGY, CONSUMERISM AND POLICY

168 (2010).

284. Ariès, supra note 279, at 106.

285. Chavez, supra note 20 (“[T]he aversion Americans have toward death and corpses

is not common elsewhere. Where we’ve created a hard boundary between ourselves and

death, for most of the world a softer line exists, creating space for the living to work through

their grief, begin to comprehend death . . . .”).

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2021] FUNERAL POVERTY 433

pay for services that will assist us with viewing the deceased as

asleep rather than dead.

286

While the ancient Greeks and Romans would publicly debate

and ponder the meaning of an honorable and dignified death, mod-

ern society goes to considerable lengths to hide aging and death, so

much so that we are left with little emotional bandwidth to discuss

our own deaths.

287

As discussed above, important choices are left

unmade and detailed planning is forsaken.

Creating paths by which the vulnerable consumer may be less

vulnerable will assist with addressing the issue of funeral poverty.

Death visibility allows for increased awareness of death and the

need for pre-planning, which allows the family to save over time

for inevitable expense. A core tenet of the death-positive movement

is that hiding death and dying does more societal harm than

good.

288

The death-positive movement embraces the neutral ac-

ceptance of an organic, necessary transition in the cycle of life, with

the goal of making death more visible and less fearsome.

289

This

mission to “end our deliberate estrangement from the dead body”

290

seems at least partially to credit for recent conversations about

death doulas, home funerals, death cafés, and increased involve-

ment at funeral homes.

291

Technology has also embraced the death-

positive movement, with mindfulness apps such as WeCroak re-

minding users of the inevitability of death randomly through the

day,

292

Once I’ve Gone recording final wishes, Ever Loved offering

286. Jones, supra note 26.

287. C

LARKE, supra note 283, at 170.

288. Death Positive, O

RD. GOOD DEATH, http://www.orderofthegooddeath.com/death-posi

tive [https://perma.cc/C4MK-6NKK].

289. Heller, supra note 49 (discussing “death doulas (caring for the terminally ill), death

cafes (to discuss life’s last chapter over cake and tea), death celebrants (officiants who lead

end-of-life events), living funerals (attended by the honored while still breathing), and end-

of-life workshops (for the healthy who think ahead).”).

290. Mead, supra note 275.

291. Stephanie Booth, How the Death Positive Movement Is Coming to Life, H

EALTHLINE

(Mar. 27, 2019), https://www.healthline.com/health-news/the-death-positive-movement#

What-does-that-look-like,-exactly?- [https://perma.cc/9ZVA-MD3R].

292. Bianca Bosker, The App That Reminds You You’re Going to Die, A

TLANTIC (Jan./

Feb. 2018), https://www.theatlantic.com/magazine/archive/2018/01/when-death-pings/546

587/ [https://perma.cc/HX2C-NS6Q].

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434 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

memorial pages, Qeepr offering an interactive storytelling plat-

form,

293

and Countdown to Zero displaying your remaining life ex-

pectancy.

294

E. Broadening Access to Innovative Death-Service Technology

On Monday, February 24, 2020, Kobe and Gianna Bryant’s me-

morial service was livestreamed online for viewers from around the

world.

295

On March 13, 2020, President Donald J. Trump declared

the COVID-19 outbreak in the United States constituted a national

emergency (effective March 1, 2020).

296

Although some funeral pro-

viders had already considered use of livestream technology to make

services available for those unable to travel to attend,

297

Kobe’s me-

morial service followed shortly thereafter by the pandemic marks

necessity breeding invention—successive events that have caused

the death services industry to lean heavily upon technology to offer

innovative alternatives to traditional approaches, such as the

livestreaming of a funeral.

298

There has never been a single form of American funeral, likely

due to the heterogeneous groupings that comprise our population,

each attached to varied ethnic and religious customs.

299

Our sys-

tem is currently one of rich and evolving variety, and the funeral

of the future should also make available a panoply of new and af-

293. Peter Billingham, 8 Digital Legacy Death Apps That Can Make You Immortal,

EATH GOES DIGITAL, https://www.deathgoesdigital.com/blog/2016/8-death-apps [https://

perma.cc/S4EU-4YZC].

294. Joyce Alla, Death . . . There’s an App for That, BUCKET, https://thebucket.com/dyi

ng-well/death-theres-an-app-for-that/ [https://perma.cc/6EHH-MWF4] (“The app also esti-

mates your life in terms of events, for example, how many more weekends do you have? How

many meals will you enjoy? Or, how many sunrises?”).

295. Kobe Bryant Memorial Live Stream: How to Watch Service Online, NBC

SPORTS

(Feb. 23, 2020, 1:48 PM), https://www.nbcsports.com/bayarea/warriors/kobe-bryant-memori

al-live-stream-how-watch-service-online [https://perma.cc/BPQ5-25NT].

296. Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the

Novel Coronavirus Disease (COVID-19) Outbreak, W

HITE HOUSE (Mar. 13, 2020), https://

www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-conc

erning-novel-coronavirus-disease-covid-19-outbreak/ [https://perma.cc/5GDQ-KHAM].

297. Helman, supra note 196 (“Currently SCI isn’t charging customers for livestreaming

services, but ultimately Ryan [chief executive of SCI] figures that livestreams are an add-

on customers might be willing to pay around $300 for, and the option will be available even

when social distancing is no longer necessary.”).

298. See Wells, supra note 104 (reporting survey results that 40% of consumers expected

livestreaming to continue, but only 21% would pay an add-on fee for it).

299. Dawson et al., supra note 120, at 130.

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fordable options for the consumer. A market barrier to develop-

ment of new, affordable death-service technology exists in the form

of state law and regulation that unnecessarily imposes costs and

preserves the status quo. Two areas in which the law regulates the

funeral industry are of particular concern: Ready-to-Embalm Laws

and Abuse-of-Corpse Laws.

Ready-to-Embalm Laws are an interesting study in preservation

of the status quo and limitation of competition in the name of con-

sumer protection.

300

In 1945, Arizona enacted a consumer-protec-

tion regulation aimed at protecting the public from poor-quality

embalming.

301

This regulation came at a time when most funeral

homes were family owned, open-casket viewings were the norm,

302

and an in-house embalming facility was necessary because of mar-

ket demand.

303

Thirty-eight states followed in quick succession, en-

acting some version of a “ready-to-embalm” law.

304

Twenty-three of

these states require that all funeral directors be licensed embalm-

ers and all funeral homes have embalming facilities.

305

Thirteen

states require only the embalming room portion of this require-

ment,

306

and alternatively, only Iowa and the District of Columbia

300. #punintended.

301. David E. Harrington, Markets: Preserving Funeral Markets with Ready-to-Embalm

Laws, J.

ECON. PERSPS., Fall 2017, at 201.

302. David E. Harrington & Jaret Treber, Numbers Matter: Estimating the Cost of State

Funeral Regulations, 8 W

AKE FOREST J.L. & POL’Y 29, 30 (2018).

303. Id.

304. Id. at 34 (citing Harrington, supra note 301, at

202) (noting that David E. Harring-

ton coined the term “ready-to-embalm laws”).

305. These states include Arizona, Connecticut, Delaware, Georgia, Illinois, Indiana,

Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New Jersey, New

Mexico, New York, North Dakota, Pennsylvania, Rhode Island, Utah, Virginia, West Vir-

ginia, Wisconsin, and Wyoming. See A

RIZ. REV. STAT. ANN. §§ 32-1322, -1382; CONN. GEN.

STAT. §§ 20-222(b), -223; DEL. CODE ANN. tit. 24, §§ 3107(a)(1)–(2), 3117(g); GA. CODE. ANN.

§§ 43-18-41(c), -70(b)(2); 225 ILL. COMP. STAT. 41/10-10, 15-55; IND. CODE § 25-15-14-3(b); 832

IND. ADMIN. CODE 5-1-4(b); ME. STAT. tit. 32, § 1501; MASS. GEN. LAWS ch. 112, § 83; 239

MASS. CODE REGS. 3.06(1)(d); MICH. COMP. LAWS §§ 339.1806, .1809; MINN. STAT. §§

149A.20, .50(2); NEB. REV. STAT. § 38-1414; 172 NEB. ADMIN. CODE § 68-008.01(B); N.H. REV.

STAT. ANN. § 325:14(I); N.H. CODE ADMIN. R. ANN. Frl 701.01; N.J. STAT. ANN. § 45:7-48; N.J.

ADMIN. CODE § 13:36-5.5(a); N.M. STAT. ANN. §§ 61-32-9, -11(A)(2)(c); N.Y. PUB. HEALTH

LAW § 3421; N.Y. COMP. CODES R. & REGS. tit. 10, § 77.5(c)(2); N.D. CENT. CODE § 43-10-10;

N.D. ADMIN. CODE 25-02-01-03; 63 PA. CONS. STAT. § 479.3; 49 PA. CODE § 13.94; 5 R.I. GEN.

LAWS §§ 5-33.2-6, -12; UTAH CODE ANN. § 58-9-302; UTAH ADMIN. CODE r. 156-9-401(3)(a);

VA. CODE ANN. § 54.1-2813; 18 VA. ADMIN. CODE § 65-20-540(A); W. VA. CODE § 30-6-9(a)(1);

W. VA. CODE R. § 6-1-13.1.1; WIS. STAT. §§ 445.045, .105(c); WYO. STAT. ANN. §§ 33-16-516(c),

-517.

306. These states include Alabama, Arkansas, Florida, Kansas, Louisiana, Mississippi,

Nevada, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, and Texas.

See A

LA. CODE § 34-13-113(a)(4); ARK. CODE ANN. § 17-29-304(e)(1); FLA. STAT. § 497.380(1);

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436 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

require that a funeral director be licensed to embalm.

307

Although

these laws are becoming outmoded, there are only eleven states

without this kind of market-restricting regulation.

308

In those states that separate the funeral director’s license from

embalming licensure, the embalming educational requirements

take an average of 1.3 years of additional education to complete.

309

In the states that require funeral homes to maintain embalming

rooms, the funeral home must invest in specialized drainage sys-

tems, ventilation, and supplies.

310

The Arizona Auditor General es-

timated in 2003 that these rooms cost $10,000 to $35,000, while

also noting that the rooms were “outdated” for current funerary

practice.

311

Another source considered the substantial resources in-

vested in an embalming prep room as ranging from $30,000 (for a

single-prep room) to $50,000 (for a triple-station room).

312

The additional costs imposed by the “ready-to-embalm” laws—

in the form of additional educational requirements and/or mainte-

nance of facilities—are not insignificant.

313

Harrington estimated

in 2007 that these laws increase the costs of simple cremations by

$313 and burials by $546.

314

Driving increased cost in the name of

quality embalming is arguably inefficient and wasteful given that

cremation is notably trending in the United States as the leading

death care service, increasing from 31.2% in 2004 to 54.6% in

KAN. STAT. ANN. § 65-1713a(a); LA. STAT. ANN. § 37:842(F); LA. ADMIN. CODE tit. 46, §

37:1107(B)(2); MISS. CODE ANN. § 73-11-55(4)(a); NEV. REV. STAT. § 642.016; N.C. GEN. STAT.

§ 90-210.27A(a); OKLA. STAT. tit. 59, § 396.3(C); OKLA. ADMIN. CODE § 235:10-3-2(5); S.C.

CODE ANN. REGS. 57-10(B)(2); S.D. CODIFIED LAWS § 36-19-28; TENN. CODE ANN. § 62-5-

313(b)(2);

TEX. OCC. CODE ANN. § 651.351(d)(5).

307. See D.C.

CODE § 3-405(a)(3); IOWA CODE § 156.4(2).

308. These states are Alaska, California, Colorado, Hawaii, Idaho, Kentucky, Missouri,

Ohio, Oregon, Vermont, and Washington. See A

LASKA STAT. § 08.42.020; CAL. BUS. & PROF.

CODE § 7616(a)(1), (2); COLO. REV. STAT. §§ 12-135-103 to -104; HAW. REV. STAT. § 469-1;

IDAHO CODE §§ 54-1109, -1111; KY. REV. STAT. ANN. §§ 316.030, .125; MO. REV. STAT. §

333.041(1); OHIO ADMIN. CODE § 4717-7-02(D)(2); OR. ADMIN. R. 830-040-0020(6); VT. STAT.

ANN. tit. 26, § 1252(a)–(b); WASH. ADMIN. CODE § 308-48-031.

309. Foos, supra note 30, at 1388–89.

310. Id. at

1390–91.

311. Id. at

1391–92.

312. See Duncan Stuart Todd, The Worth of the Prep Room, D

UNCAN STUART TODD (Feb.

1, 2016), https://duncanstuarttodd.com/the-worth-of-the-prep-room/ [https://perma.cc/7TPU

-KT5Z].

313. Harrington, supra note 301,

at 202 (“Ready-to-embalm laws increase costs for all

firms selling funeral services . . . .”).

314. Id. at 204.

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2021] FUNERAL POVERTY 437

2019.

315

The rate of cremation is estimated to increase to almost

80% by 2040.

316

Direct cremation without use of embalming

317

was

estimated to comprise 72% of cremations in 2014.

318

A second way in which the law may impose unnecessary costs

and reinforce the status quo may be occurring through a set of stat-

utes colloquially referred to as “abuse-of-corpse” laws.

319

These

laws vary from state to state but generally criminalize treatment

of human remains in any way that would offend “ordinary family

sensibilities.”

320

Abuse-of-corpse laws exist to prevent a corpse

from being mistreated, molested, or maimed—e.g., necrophilia,

public exhibition, private display.

321

Interestingly, the laws may

also create unnecessary barriers to entry in this marketplace for

entrepreneurs, and in doing so, implicitly stymy capital invested

into this space.

322

The breadth of this topic is outside the scope of

this Article simply because it deserves its own individual treat-

ment, but a recent example illustrates the issue.

A promising (but early-stage, theoretical) funeral technology

known as promession has not yet come to market in the United

315. Industry Statistical Information, CREMATION ASS’N N. AM., https://www.cremat

ionassociation.org/page/IndustryStatistics [https://perma.cc/965S-MHF3].

316. Jeanne Croteau, By 2040, Nearly 80% Will Be Cremated—Why We Need to Start

Talking About It, F

ORBES (Aug. 30, 2019), https://www.forbes.com/sites/jeannecroteau/2019

/08/30/by-2040-nearly-80-will-be-cremated—why-we-need-to-start-talking-about-it/#2569

f15368d3 [https://perma.cc/Q8EF-MEJ6].

317. Dawson et al., supra note 120, at 143 (recounting that visiting and viewing of the

body and embalming was more common for burials as opposed to cremations—75% and 64%

versus 22% and 14%, respectively).

318. N

AT’L FUNERAL DIRS. ASS’N, 2015 NFDA CREMATION AND BURIAL REPORT:

RESEARCH, STATISTICS AND PROJECTIONS 2 (July 10, 2015), https://iogr.memberclicks.net

/assets/docs/2015%20nfda%20cremation%20and%20burial%20report.pdf [https://perma.cc/

3S7P-KLU4].

319. C

AITLIN DOUGHTY, WILL MY CAT EAT MY EYEBALLS?: BIG QUESTIONS FROM TINY

MORTALS ABOUT DEATH 15 (2019) (“Because of abuse of corpse laws, nobody’s dead body can

be claimed as property. ‘Finder’s keepers’ doesn’t apply here. But unfortunately, those same

abuse of corpse laws prevent you from plopping Mom’s skull on your bookcase.”).

320. This language is included in the Kentucky statute. Caitlin Doughty, You Can’t Keep

Your Parents’ Skulls, A

TLANTIC (Sept. 4, 2019), https://www.theatlantic.com/science/archi

ve/2019/09/why-you-cant-display-your-relatives-skull/597307/ [https://perma.cc/5J9D-2M

BR].

321. Id. (“Then there are cases like that of Julia Pastrana, a 19th-century Mexican

woman with a condition called hypertrichosis, which caused hair to grow all over her face

and body. After she died, her husband saw that there was money to be made by displaying

Pastrana in freak shows, so he took her embalmed and taxidermied corpse on world tour.

Pastrana had ceased to be regarded as human; her corpse had become a possession.”).

322. See generally Tanya D. Marsh, Regulated to Death: Occupational Licensing and the

Demise of the U.S. Funeral Services Industry, 8 W

AKE FOREST J.L. & POL’Y 5 (2018).

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438 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

States. Promession is an innovative process conceived by Swedish

biologist Susanne Wiigh-Mäsak by which a corpse is essentially

freeze-dried and shattered to dust: the human remains are exposed

to temperatures below negative 196 degrees Celsius,

323

all fluid is

removed through this exposure, the remaining solid is frozen and

brittle (because the human body is approximately 75% water),

324

and mechanical vibration is applied to reduce the frozen solid to

granules.

325

The theory underlying this process is that remains will

be recycled

326

into granules that are nutrient-rich and nurturing to

plant life.

327

A company was formed to explore commercial interest,

and a number of representatives are working in the United States

with the goal of developing markets and legalizing the technol-

ogy.

328

It was thought that promession would satisfy the Kansas defi-

nition of cremation and be legal without a need for any change in

existing law.

329

Fire-based cremation reduces remains to ash

whereas promession uses vibration to reduce a freeze-dried solid

into “crystalized body particles.”

330

In November 2019, Kansas At-

torney General Derek Schmidt issued a decision

331

that promession

does not satisfy existing legal requirements for cremation as de-

fined by state law.

332

This leaves promession without legal ground

323. The corpse is more or less turned into a popsicle. JACQUELINE ELAM & CHASE

PIELAK, CORPSE ENCOUNTERS: AN AESTHETICS OF DEATH 148 (2018).

324. Nicholas Tufnell, Freeze-Drying the Dead Could Help Save the Planet, WIRED (Oct.

14, 2013), https://www.wired.co.uk/article/promessa [https://perma.cc/JT7A-KPZ3] (“Within

a week and a half after death, the corpse is frozen to minus 18 degrees Celsius and then

submerged in liquid nitrogen. This makes the body very brittle and vibration of a specific

amplitude transforms it into an organic powder that is then introduced into a vacuum cham-

ber where the water is evaporated away.”).

325. E

LAM & PIELAK, supra note 323, at 149.

326. Id.

327. See Amy Houchin, Promession: The Most Ecological Way to Bury Our Dead?,

NTHROPOLOGICAL PERSPS. ON DEATH (Apr. 3, 2017), https://scholarblogs.emory.edu/grave

matters/2017/04/03/promession-the-most-ecological-way-to-bury-our-dead/ [https://perma.

cc/8RZY-58BS].

328. In November 2019, the Kansas Attorney General issued a legal opinion setting forth

that promession did not fall within the state definition of cremation. Jonathan Shorman,

Can You Get Your Body Vibrated into Particles When You Die? Debate Unfolds in Kansas,

ICHITA EAGLE (Nov. 30, 2019, 5:00 AM), https://www.kansas.com/news/politics-governm

ent/article237888864.html [https://perma.cc/4QVD-6MU3]. This is the first state in which

an opinion was sought because Kansas has a comparatively broad definition of what consti-

tutes cremation. Id.

329. Id.

330. See No. 2019-9, Op. Kan. Att’y Gen. (2019).

331. Id.

332. Michael Waters, The Future of Death Tech Has No Rules—Yet, WIRED (Jan. 24,

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 439

to be offered to consumers within the state of Kansas unless exist-

ing law is amended and expanded, and it may leave other potential

death-tech startups leery. The law stands as a barrier to experi-

menting and developing innovative, green death technologies. Alt-

hough some regulating laws are meant to protect the consumer,

333

such laws also create barriers to entry that protect those currently

operating within the industry.

334

The notion of regulatory capture

in the death services industry is a subject worth exploring on an-

other day.

335

F. Access to Reliably and Ethically Managed Pre-Need Planning

Options

There are two types of death planning: planning before death

(pre-need) or planning after death (at-need).

336

A decedent may

only be an active participant, in terms of planning or payment, if

she engages in pre-need planning. Pre-need planning may involve

merely specifying preferences as to death care services, or it may

include both pre-arrangement and pre-payment for preferred ser-

vices.

337

Either approach may spare survivors the burden of mak-

ing unfamiliar, time-sensitive, expensive decisions.

338

Although

modern law is deferential to pre-need planning in the form of pref-

2020), https://www.wired.com/story/the-future-of-death-tech-has-no-rulesyet/ [https://perm

a.cc/6XGD-WX35] (“His reasoning reads a bit like science fiction and a bit like a rabbi’s

parsing of biblical law. Schmidt argued, for instance, that cremation requires ‘the sepa-

ration of flesh from bone by the destruction of the flesh’. Promession certainly could be

said to destroy the flesh, but the crystallization process doesn’t really separate it from the

bone. In that sense, Schmidt concluded that Kansas could not treat it as cremation.”).

333. See B

UREAU OF CONSUMER PROT., FUNERAL INDUSTRY PRACTICES 4 (1978) (“Con-

sumer choice has been further diluted by industry efforts to suppress inexpensive alterna-

tives to complete funeral services.”).

334. See Marsh, supra note 322, at

26.

335. Regulatory capture refers to a close relationship that exists between regulators and

industry, and usually focuses on the (negative) concern that regulators have become the

puppets of a specific industry. It is a topic that has been discussed since at least the 1950s.

Dorit Rubinstein Reiss, The Benefits of Capture, 47

WAKE FOREST L. REV. 569, 570–71, 580

(2012).

336. M

ARSH, supra note 56, at 75.

337. Id.

338. See Pearl, supra note 90 (“I would rather tell my family to stick me in a bag and

toss me into the woods (which is legal in my state) than have them ask for money online to

fill a funeral director’s coffers.”).

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440 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

erences set forth in a testamentary instrument, a substantial mi-

nority of decedents have pre-planned and pre-paid for death care

services.

339

Accepted wisdom is that the living should not pre-pay for death

care services, specifically because pre-paid arrangements seem to

present more problems than solutions.

340

Because the Federal

Trade Commission’s Funeral Rule does not apply to pre-need fu-

neral arrangements, and it is an area that is regulated by each

individual state, the level of consumer protection varies dramati-

cally from state to state.

341

Next-of-kin may be prohibited from

amending the pre-paid arrangements, and circumstances may

have changed such that it is necessary to amend arrangements.

342

The funeral home may choose to provide only some of the con-

tracted goods or arrangements—feeling financial pressure because

costs inflated since the time of the original contract.

343

Further, as

a practical matter, the decedent may have pre-arranged and pre-

paid for death services but then failed to communicate these plans

to any survivors.

344

Because there is often no annual reporting re-

quirement to the purchaser, there is also no paperwork regularly

mailed to the purchaser that would assist survivors in realizing

that pre-planning occurred.

345

339. See Ann M. Murphy, Please Don’t Bury Me Down in That Cold Ground: The Need

for Uniform Laws on the Disposition of Human Remains, 15 E

LDER L.J. 381, 400 (2007).

340. Pat McKeough, Hidden Risks of Prepaid Funerals, TSI

NETWORK (July 2, 2020),

https://www.tsinetwork.ca/daily-advice/wealth-management/hidden-risks-investing-money

-prepaid-funerals/ [https://perma.cc/9GGW-MM5F] (noting the pertinence of this infor-

mation during the COVID-19 pandemic and listing drawbacks of prepaid funerals: prepaid

funerals limit options and they may not raise as much as anticipated); Robert Patrick, Fa-

ther, Son Plead Guilty in St. Louis Prepaid Funeral Scam Case, S

T. LOUIS TODAY (July 4,

2013), https://www.stltoday.com/news/local/crime-and-courts/father-son-plead-guilty-in-st-

louis-prepaid-funeralscam-case/article_64cc95bc-a953-5881-a5b5-fe55c3741b65.html [http

s://perma.cc/GC8M-RNEB] (recounting how a father and son engaged in a prepaid funeral

ponzi scheme that “affected up to 150,000 customers who paid up to $10,000.”); Prepaid

Funeral Scam: Fitting End to Multi-State Fraud Scheme, FBI N

EWS (Jan. 17, 2014),

https://www.fbi.gov/news/stories/prepaid-funeral-scam [https://perma.cc/Z9DE-53EL] (de-

scribing events of a prepaid funeral, stating the scam involved “[s]camming nuns. Taking

advantage of the mentally disabled. Stealing from the elderly.”).

341. Tracy E. Smith, Scamming the Elderly: A Look into Funeral Fraud, 24

GPSOLO 16,

16–17 (2007) (listing inconsistent consumer protection as a drawback to prepaid funeral ar-

rangements).

342. L

ISA CARLSON & JOSHUA SLOCUM, FINAL RIGHTS: RECLAIMING THE AMERICAN WAY

DEATH 427 (2011).

343. Smith, supra note 341, at 16–17.

344. Burley, supra note 9.

345. C

ARLSON & SLOCUM, supra note 342, at 427–28.

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2021] FUNERAL POVERTY 441

There are two primary options for pre-need death services fi-

nancing: pre-need trusts and pre-need insurance policies.

346

Both

options are regulated at the state level with regulation varying

wildly.

347

When the pre-need consumer decides that he wants to

pay in full for pre-arrangement through a funeral home, most

states require that the funds be placed into a trust account.

348

funeral trust is defined by the Internal Revenue Service as a

“pooled income fund” established by a funeral home to cover death

service expenses, with the funeral home as the beneficiary of the

trust.

349

The funeral home, or a state or local funeral association,

may serve as trustee of the trust.

350

Pre-need insurance policies

may also be utilized to fund pre-payment arrangements in all

states but New York and Alaska.

351

The pre-need insurance con-

tract is usually obtained through the funeral home, with the bene-

fit amount equal to the costs estimated for arranged services, and

the funeral home acting as an agent for the insurance company.

352

These pre-need financing options are deeply problematic.

353

number of state funeral home associations have managed pre-need

funeral trusts that had millions of dollars in trust shortfalls.

354

Fu-

346. MARSH, supra note 56, at 75.

347. Id.

348. Id.

349. Marilyn Bowden, Pros and Cons of Funeral Trusts, B

ANKRATE (Apr. 7, 2010), https:

//www.bankrate.com/finance/insurance/pros-and-cons-of-funeral-trusts-1.aspx [https://per

ma.cc/46M3-W9PY].

350. Lynda Neuenschwander, The Pros and Cons of Funeral Trusts, N

AT’L CARE PLAN.

COUNCIL, https://www.longtermcarelink.net/eldercare/funeral_trusts.htm [https://perma.cc

/HT5M-PMG8].

351. M

ARSH, supra note 56, at 76.

352. Id.

353. The deficiency of pre-need funeral financing options is staggering and will be

treated separately (and in great depth) in a forthcoming article. The many disadvantages of

pre-need financial instruments are touted in popular media and use is discouraged. See, e.g.,

Maranjian, supra note 281; Martin, supra note 281 (cautioning, “Funeral Directors Can Go

Bankrupt or Embezzle Your Money”); Potts, supra note 281 (“[Y]our situation may change

between when you pay and when you die.”); Should You Prepay for Your Funeral? Safer

Ways to Plan Ahead, supra note 281 (“[I]f you decide to pay for your funeral in advance, be

very cautious.” (emphasis in original)). For this reason, AARP and the Funeral Consumers

Alliance recommend preplanning but discourage prepayment. Bern-Klug, supra note 115,

at 34.

354. Victoria J. Haneman, Tax Incentives for Green Burial, __ N

EV. L.J. __ (forthcoming

2021).

A number of state funeral home associations have established preneed trusts

as a pooled income fund: almost 500 funeral homes and 10,500 investors had

preneed contracts tied to the Wisconsin Funeral Director’s Preneed Trust and

a $21 million shortfall occurred; in 2006, the Illinois Funeral Director’s

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442 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

neral trusts are so rarely used by professional planners that no in-

formation about them is included in the certification materials for

financial planners, and trusts established through a funeral home

should ideally have an independent third party as trustee (with an

obligation to audit).

355

Many pre-need insurance policies have a

minimum age of forty to apply, benefits are not portable to a dif-

ferent funeral home or state,

356

waiting periods may apply, and

benefits may be impacted if the funeral home goes out of busi-

ness.

357

Further, enforcement of a pre-need contract is sometimes

problematic because of underlying privity issues: courts are di-

vided as to whether or not these contracts may be enforced after

death on behalf of the executor, and survivors may therefore have

no legal right to sue for breach.

358

A significant market failure for low- and middle-income consum-

ers engaging in pre-need prepayment and arrangement is the lack

of reliable, accessible, flexible, and portable financial products that

will facilitate payment through installments over time. It is well

established that access to credit and financial tools is particularly

meaningful for poverty reduction, and that barriers to accessing

these tools disproportionately impact the poor.

359

Low- and middle-

income consumers have a need for reliable installment financing

options because the likelihood that they have accumulated savings

Preneed trust ran a $40 million shortfall; in 2011, the California Master Trust

(created in 1985, with more than 27,000 investors and in excess of $63 million

under management) was sued by Attorney General Kamala Harris—who esti-

mated that $14 million needed to be repaid to the trust for charging excessive

administrative fees and paying illegal kickbacks to funeral homes.

Id.

355. Bowden, supra note 349.

356. Id. (“Angie Grillo . . . says her experience was anything but peaceful . . . . ‘We didn’t

even know she had a funeral trust until we found the account statement in her papers . . . .

She lived in Florida, but the trust had been written while she lived in Wisconsin, and the

trustee and beneficiary was a funeral parlor in Wisconsin.’ The Florida firm refused to ac-

cept the funeral trust for payment, and the Wisconsin funeral home refused to release

funds.”).

357. See Martin, supra note 281.

358. M

ARSH, supra note 56, at 76 (“Generally, an action for breach of contract may only

be brought by a party to the contract. Typically the only two parties to pre-need contract are

the funeral home and the decedent. Courts are divided on the question of whether or not a

pre-need funeral contract can be enforced by the executor”).

359. Shawna-Gay White, Access to Credit: A Viable Means of Poverty Alleviation (June

2, 2010) (unpublished M.A. thesis, Stanford University) (on file with author).

HANEMAN 552 (DO NOT DELETE) 2/11/2021 3:58 PM

2021] FUNERAL POVERTY 443

to cover death services expenses is lower than average, and plan-

ning for this type of inevitable expense during life has the potential

to lift these consumers out of funeral poverty.

G. Reimbursement Through Flexible Spending Accounts

Death service expenses are not “qualified expenses” and are

presently ineligible for reimbursement through an employee’s flex-

ible spending account (“FSA”).

360

The FSA is a plan authorized un-

der section 125 of the Internal Revenue Code wherein an employee

may deposit a set monthly amount into the plan on a pre-tax basis,

and qualified expenses may be netted against the pre-tax contribu-

tions and reimbursed through the FSA.

361

The intent of the plan is

that the employee’s after-tax cost for expenses reimbursed through

the FSA is limited.

362

Generally, qualified expenses for the purpose

of FSA reimbursement are those eligible for a medical or dental

itemized deduction under section 213(d) of the Code.

363

At time of

death, heirs are not entitled to claim funds remaining in the FSA

account.

364

Some or all death care expenses should be characterized as

“qualified expenses” for the limited purpose of reimbursement

through FSA accounts.

365

Reimbursement would be permitted both

for pre-need and at-need expenses. Allowing death care expenses

360. See Funeral Expenses: FSA Eligibility, FSA STORE, https://fsastore.com/FSA-Eligib

ility-List/F/Funeral-Expenses-E325.aspx [https://perma.cc/66XF-VCLK].

361. FAQs for Government Entities Regarding Cafeteria Plans, IRS, https://www.irs.

gov/government-entities/federal-state-local-governments/faqs-for-government-entities-reg

arding-cafeteria-plans [https://perma.cc/T4Q3-P8CH] (last updated Mar. 16, 2020).

362. Uwe E. Reinhardt, The Trouble with (In)flexible Spending Accounts, N.Y.

TIMES

(May 29, 2009, 7:14 AM), https://economix.blogs.nytimes.com/2009/05/29/the-trouble-with-

flexible-spending-accounts/ [https://perma.cc/DRY4-QD6S] (contrasting the intent of the

provision with its actual impact, criticizing “[t]he F.S.A. comes from a mischievous portion

of Section 125 of the Internal Revenue Code that seems designed to be (1) inequitable, (2)

administratively cumbersome, (3) inflationary and (4) vexatious to millions of Americans.”).

363. Laura Taylor, Adam Cohen & Vanessa Scott, Emerging Coronavirus Issues for Em-

ployer Benefit Plans, L

AW360 (Mar. 13, 2020, 4:23 PM), https://www.law360.com/articles/12

52974/emerging-coronavirus-issues-for-employer-benefit-plans [https://perma.cc/9Q6D-EG

WR].

364. Any medical expenses for the decedent that arose before time of death may be re-

imbursed through the plan. Sarah Li Cain, Asked and Answered: What Happens to an FSA

When Someone Dies?, FSA

STORE, https://fsastore.com/learn/basics/fsa-when-someone-dies

[https://perma.cc/25AG-A5G7].

365. It is outside of the scope of this Article to discuss whether death care services should

be qualified for purposes of section 213(d). The author reserves the right to address this

issue at a later time.

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444 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 55:387

to be FSA-eligible on a pre-need basis would incentivize pre-need

planning because some portion of the planning would come from

pre-tax contributions through the use of an FSA. Permitting reim-

bursements for at-need expenses (arising after death) would also

permit contributions made by the decedent during life to be used

for at-need planning by survivors, thereby alleviating some of the

financial burden on the living through the use of decedent’s own

contributions.

366

ONCLUSION

The idea of poverty is intuitive and ubiquitous, extending far be-

yond the notion of having limited or insufficient financial re-

sources.

367

Lifting oneself out of poverty is extraordinarily difficult

and not simply a matter of working harder: being stuck above or

below the poverty line carries the implicit consequences of finan-

cial fragility and limited opportunity, both of which have the po-

tential to create cycles of poverty that have intergenerational im-

pact within a family.

Death service expenses represent more than simply another un-

expected bill to be paid. There is a societal and cultural baggage to

unpack with this unique expense, and spending is often about more

than money. Consumption within this space may operate not only

as a status marker,

368

but also as a means of satisfying community

expectations and avoiding peer judgment that the deceased has

been dishonored. Driven by guilt of loss, peer pressure, and cul-

366. The main drawback to an FSA is the “use it or lose it” rule imposed on the employee,

with unused contributions usually being forfeited by the employee and turned over to the

employer. See What Can Employers Do with Forfeited Employee FSA Balances?, F

ILLER &

ASSOCS. (Jan. 27, 2017), http://www.filler.com/2017/01/27/what-can-employers-do-with-for

feited-employee-fsa-balances/ [https://perma.cc/2WLR-8MGB].

367. Oscar Calvo-González, It Takes More Than Just Money to Escape Poverty, WORLD

BANK BLOGS (Oct. 17, 2018), https://blogs.worldbank.org/latinamerica/it-takes-more-just-

money-escape-poverty [https://perma.cc/95P6-85UC]. (“The other day I asked my five-year-

old daughter if she knew what being poor was. She hesitated at first but soon she was on a

roll. She mentioned that being poor was not having enough to eat, not living in a ‘germ-free’

house, and—my favorites—not having gummy bears or a blanket. All this within the first

couple of minutes of possibly her first time ever thinking about what being poor meant.”).

368. See generally C

URRID-HALKETT, supra note 174.

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tural choices, extraordinary levels of consumption relative to over-

all wealth occur, with potentially staggering consequences to the

most financially vulnerable in our society.

369

Changes must be made that heighten consumer death literacy,

bring awareness to spending during times of grief, and ease access

to information. The merits of pre-need prepayment death care

planning should be extolled and incentivized, so that the consumer

is not rendered vulnerable by the need to make swift decisions

while likely cognitively impaired. It is also time to question

whether fusty death services laws operate primarily to protect the

consumer (in which case, updates are needed) or to further en-

trench current funerary practice and create market barriers that

stymy disruptive (and potentially less expensive) technologies.

369. See David McNeill, The Business of Death: Profiting from Loss in Japan, IRISH

TIMES (Aug. 31, 2017, 6:00 AM), https://www.irishtimes.com/business/innovation/the-busin

ess-of-death-profiting-from-loss-in-japan-1.3198203 [https://perma.cc/2JVD-GAKT] (“Fu-

neral homes typically take advantage of a cultural unwillingness to haggle during a period

of mourning. Customers are sometimes not even offered quotes for funeral services before

beginning the burial process. Confronted with the exorbitant final tab, many wince, swallow

hard and stump up the cash.”).