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Cremation and The Liability Time Bomb

Funeral Services Provider realizes it, many funereal homes have a “liability time bomb” sitting in a closet stored in the basement or hidden away in some cabinet; unclaimed cremated remains.  With increases In the cremation rate and the number of transient families, most funeral homes will eventually encounter family members who do not return to the funeral home to pick up cremated remains.  As a result in a few years a funeral home can quickly accumulate and inventory of 20 or 30 urns and containers of unclaimed cremated remains.  If the unclaimed cremated remains are lost in a fire or flood, or simply misplaced with the passage of time, liability could be imposed against your funeral home.  While placing the cremated remains in a secure, fireproof cabinet with each urn identified both inside and outside offers some protection, the best protection is to lawfully dispose of all unclaimed cremated remains.

State Laws

Fortunately, as states enacted or updated cremation laws in the wake of the Tri-State Crematory scandal in Noble, Georgia, many addressed the problem of unclaimed cremated remains.  More than half of states in the U.S. now have specific laws that allow crematory operators and funeral directors to dispose of unclaimed cremated remains.  Unfortunately there is little consistency among these state laws.  Some states, such as Alabama and South Carolina, require holding onto the cremated remains only for 60 days before disposition while others, such as California and North Dakota, require a one year holding period.  A few states, such as Texas and Kansas, also require the crematory or funeral home to send a certified letter to the authorizing agent prior to the disposition of the unclaimed cremated remains.  Another element where state laws differ concerns the manner of disposition.  For example, Texas and North Dakota only allow interment of unclaimed cremated remains in a plot.  Ohio permits interment in a grave, crypt or niche.  Other states, such as Kansas and Alabama, permit any type of disposition, including scattering the cremated remains over land or water.  An important item that many states fail to address is whether these laws apply retroactively.  One exception to the rule is South Carolina.  Its unclaimed cremated remains statute specifically states that a funeral home or crematory in possession of unclaimed cremated remains before the enactment of the statute may dispose of those cremated remains in accordance with the new law.

Authorization Forms

NFDA highly recommends that funeral homes specifically address unclaimed cremated remains by using cremation authorization forms.  At the time the cremation authorization is signed, funeral homes should have the authorizing agent specify in writing where, when and how the disposition of the cremated remains will take place.  The authorization form should also spell out that if the authorizing agent fails to return for the cremated remains, then the funeral home will dispose of the cremated remains in accordance with state law.  Funeral homes should incorporate the requirements of state law directly into the authorization forms.  For example if your state law allows any type of disposition after 60 days, the authorization form should clearly state that your funeral home will dispose of the cremated remains by burial, placement in a crypt or niche, or by scattering if the cremated remains are not picked up within 60 days.  The authorization form should also inform the authorizing agent that the expense of the disposition will be the sole responsibility of the authorizing agent.  If the cremated remains are interred or placed in a crypt or niche, the form should also notify the authorizing agent that any attempt to recover the cremated remains later would be at the sole cost of the authorizing agent.  One method that some funeral homes have successfully employed to reduce the number of unclaimed cremated remains is to collect a deposit from the authorizing agent at the time of the cremation arrangement.  When the authorizing agent returns to claim the cremated remains, the funeral home repays the deposit to the authorizing agent.  If the authorizing agent fails to claim the cremated remains, the funeral home uses the deposit to pay the cost of the disposition.  A sample deposit form appears on page 110, and funeral homes that wish to use this form should modify the form so that it tracks the requirements of their state law.

Protecting Your Funeral Home

What should funeral homes do if their state does not have a law allowing disposition of unclaimed cremated remains?  Fortunately, there is nothing precluding a funeral home from imposing reasonable requirements on unclaimed cremated remains in the cremation authorization form.  As long as the provisions are reasonable and agreed to by the authorizing agent, they would be binding.  For example, a provision in the cremation authorization form stating that cremated remains will be interred or placed in a crypt or niche if not claimed within 120 days would be valid.  Of course, it would not be advisable to contractually provide for the scattering of cremated remains or any type of disposition that precludes future recovery of the cremated remains.  Funeral homes in possession of old sets of unclaimed cremated remains that predate their cremated remains disposition statue face a choice of either holding onto the cremated remains indefinitely or arranging for a disposition that allows future recovery.  Some funeral homes have taken the latter route and interred their unclaimed cremated remains in top-of-the line vaults or placed them in crypts or niches.  Before undertaking such disposition, however it is advisable to make one last attempt to contact family members by registered or certified mail.  The letter should inform the family of when and where the cremated remains will be disposed and that the cost of disposition and any future recovery is the obligation of the family.  Assuming that such notification is unsuccessful, identify each set of unclaimed cremated remains on the outside and inside of the urn or container, and make a chart showing where each set of cremated remains is placed in the vault, crypt or niche.  Maintain this chart as a permanent file of your funeral home.  NFDA members with questions regarding unclaimed cremated remains may contact Scott Gilligan at 513-871-6332.

If you or a family member have any further questions or concerns with respect to cremation, cremation services, cremation costs or a direct cremation please feel free to contact Funeral Services Provider toll free 24 hours daily at 1-877-989-9090.

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