Planning Ahead of Time: Relieving Your Loved Ones the Burden of Making Funeral and Burial Arrangements

By: Attorney Lynnette Marshall

plan ahead

Recently my husband lost his beloved grandmother to a stroke. She passed on from this world having led an exemplary life and leaving the legacy of 17 grandchildren, 28 great-grandchildren and 4 great-great grandchildren. Although her health was quite good for her 93 years, at some point in the past she'd taken the initiative not just to have her will prepared, but to purchase and pre-arrange her burial and funeral services.

What a fantastic idea - at least in theory - to relieve your loved ones the burden of making funeral and burial arrangements when all they really want to do is grieve your loss. I dare say it was evidence of the true matriarch my husband's grandmother was to her family that she was caring for them and easing their burden even after her passing. She is truly missed by all who knew her, equally with all who loved her.

Grandmother

At once, I thought, "I want to do that for my family!" And: "I wish my mother and grandmother would make their own arrangements for our family," as well as, "How do you keep from getting ripped off when purchasing pre-need funeral services?" Then, of course, the lawyer in me took over, and I began to contemplate all the problems and pitfalls that could accompany the sale and purchase of burial plots and pre-need funeral services.

There was definitely a time in West Virginia's history when the sale of pre-need burial and funeral services was a problem. We have multiple articles of the West Virginia Code dedicated to preneed cemetery company property, goods and services and related contracts, West Virginia Code §35-5B-1, et seq., as well as, preneed funeral contracts, West Virginia Code §47-14-1, et seq. This is in addition to articles and code sections governing cemeteries in general, including what you can and cannot do with a deceased human body. But that's a topic for another day.

As I began my investigation, what I at first failed to appreciate was the difference between a preneed cemetery contract, a preneed funeral contract, and the advance purchase of a burial plot. No offense to the West Virginia Legislature, but the statutory definitions were not a whole lot of help.

Read this and we'll see if your emotional response is like mine (confusion and a bit of frustration).

Preneed Cemetery Company Contracts

According to the West Virginia Code, a preneed cemetery company contract is "a contract for the sale of the real and personal property, goods or services used in connection with interring or disposing of the remains or commemorating the memory of a deceased human being, where delivery of the property or performance of the service may be delayed for more than one hundred twenty days after the receipt of the initial payment on account of such sale."

The property, goods and services referred to in West Virginia Code §35-5B-1, et seq., can include, but are not necessarily limited to "burial vaults, mausoleum crypts, lawn crypts, memorials, marker bases and opening and closing and/or interment services, but does not include graves or incidental additions such as dates, scrolls or other supplementary matter representing not more than ten percent of the total contract price."

Preneed Funeral Contracts

A preneed funeral contract, on the other hand, is "any contract, agreement, mutual understanding, series or combination of contracts, agreement and mutual understandings. . . under which, for a specified consideration paid in advance of death in a lump sum or by installments, a person promises to furnish or make available or provide funeral services, funeral goods or burial goods for use at a time determinable by the death of the contract beneficiary who is either named or implied therein." W.Va. Code §47-14-2(12). "Funeral goods" and "funeral services" are also specifically defined by code. "Funeral goods" are defined as items of merchandise that "will be used in connection with a funeral or alternative disposition of human remains, but does not include those services actually performed by a cemetery acting only as such, or the sale by the cemetery of cemetery lots, land or interest therein, services incidental thereto, or the sale by any person of markers, memorials, monuments, equipment, crypts, urns, burial vaults or vaults constructed or to be constructed in a mausoleum or columbarium." W.Va. Code §47-14-2(7). "Funeral services" means "those services usually performed by a licensed funeral establishment or director including, but not limited to, care and preparation of human remains and coordinating rites and ceremonies in connection with the disposition of human remains . . . ." W.Va. Code §47-14-2(8).

What It All Means

Huh? While I was initially a little fuzzy on exactly what funeral/burial goods and services fell under which contract, for the sake of simplification, let's move forward under the logical assumption that we will get our funeral services at the funeral home under our preneed funeral contract and our burial services at the cemetery under our preneed cemetery contract.

Moving on in my investigation, I was comforted to read that preneed cemetery company contracts can only be purchased through a written contract, and the WV Legislature has decreed that these written contracts have to be in "clear, understandable language that is printed in easy-to-read type, size and style." W.Va. Code §35-5B-5. The address of the seller, the contract buyer and the person for whom the contract is being purchased must be on the contract and the contract must contain a complete description of the property, goods or services bought, along with an itemization of the retail price of each, and must specifically include the retail price of any monument, marker, installation, foundation, opening and closing of the grave site and any other charges. The Code specifically makes the failure to provide this information an unfair method of competition and unfair or deceptive act, subject to penalty. W.Va. Code §35-5B-4.

Likewise, preneed funeral contracts can only be enforced by the seller of the contract if they have been made in full compliance with Article 14, Chapter 47; however, the buyer of a preneed funeral contract can seek to enforce the contract regardless of whether the contract itself violates the article. The WV Legislature has also clearly defined a civil action for enforcement of a preneed funeral contract which includes an award of attorney fees to the prevailing party. W.Va. Code §47-14-12.

The preneed funeral and cemetery contract industry in West Virginia would appear to be well regulated by statute and one would think that an informed consumer could purchase these services with confidence. But what else do I need to know to be an informed consumer? The Office of the West Virginia Attorney General has published an informational pamphlet regarding Preneed Funeral Contracts. You can also get good information from the West Virginia Funeral Directors Association.

I have not yet settled on the type or combination of funeral and/or burial services which is right for me and my family, so my investigation into these issues is far from over.

Call 304-881-0641 to Speak with Me

I am attorney Lynnette Marshall, and I'd be very interested in hearing whether you've had a good experience (or a bad one) with a preneed funeral or cemetery contract.

Our firm has handled many types of cases for consumers over the years, and has even assisted families with cemetery desecration claims.

We'd be happy to discuss with you any issues your family might be having in relation to the enforcement of a preneed funeral or cemetery contract. As always, we are here to help, and in this instance, your experiences would be helpful to me as well.