Long Island Personal Injury Lawyer

Honoring the Departed: A Deep Dive into the Legal and Emotional Complexities of Funeral Planning

Feb 9, 2024 | Featured Articles, Uncategorized

Adam, would you care to introduce yourself?

Adam Novak: Certainly. I am Adam Novak, the co-founder and managing partner of Jerusalem Memorial Chapels, a Jewish-operated funeral home in Levittown, New York.

Would you like to start with the Right of Sepulcher case?

Elan Wurtzel, Esq.: Absolutely. It’s a pleasure to have Adam here with us. The field of personal injury intersects deeply with life and death, and Adam is an invaluable resource for funeral and burial planning. Several years ago, we encountered a very tragic case. A young couple with small children were experiencing severe marital issues. Tragically, the wife discovered her husband had taken his own life by hanging himself outside their home. The couple were devout Hindus, and according to my client, the wife, for her to attain religious salvation for herself and her family, it was essential for her to arrange for her husband’s body to be cremated and then spread the ashes in a certain way as dictated by her Hindu faith. Without this, she believed, she could not attain religious salvation, which was deeply important to her.

Unfortunately, her in-laws, with whom she had a strained relationship, intervened. Without her knowledge, they took the ashes from the funeral home and scattered them as they saw fit, completely excluding my client. She discovered this only after the fact.

As a result, we initiated a lawsuit against the crematorium, the funeral home, and all parties involved for interfering with her religious rights. The technical term for the claim is the Right of Sepulcher, which, under New York law, is the right of a person to bury and conduct a funeral for their loved one properly, in accordance with their wishes and religious faith.

The law states that the surviving spouse, without any other legal directive, is the sole individual with the right to make burial or funeral arrangements for their spouse. The funeral home claimed ignorance of her wishes, but the truth was they neglected her rights in favor of the in-laws. Notwithstanding her marital difficulties, fulfilling these religious rites was profoundly important for my client—to honor her husband, their faith, their family, and their customs.

Adam, what are your thoughts on handling such conflicting interests?

Adam Novak: First off, I must say that the paperwork required for a cremation is quite straightforward. It should indicate who has the right to make decisions. You’re correct. The standard practice is that the surviving spouse has precedence over anyone else regarding the legal rights of determining the outcome of the disposition, be it burial or cremation. Nowadays, the amount of paperwork to organize a cremation can be overwhelming—it’s almost like getting a mortgage. No offense to lawyers, but the paperwork becomes quite cumbersome once they’re involved. In New York, a specific form acknowledges cremation is irreversible.

Speaking of irreversibility, I am sure that someone must have tried to reverse a cremation at some point and faced the stark reality that it couldn’t be done, which probably led to some legal action. In the Jewish religion, cremation is frowned upon—saying it’s ‘not allowed’ under the strict laws of Judaism is putting it lightly. However, I do encounter people who, for various reasons, choose cremation. I believe it is not my place to impose my religious views on anyone else. While I may personally disagree with cremation, I cannot and should not enforce my beliefs on others. My role is to discuss the options but never to pressure them with my views.

As for the funeral home’s responsibilities, they are explicitly defined and strictly regulated. The paperwork requires the individual responsible for the funeral arrangements to specify their relationship to the deceased and clarify their marital status—whether they were married, divorced, widowed, etc.

In my view, the funeral home—in this particular case—failed to dot their ‘i’s and cross their ‘t’s properly, which likely exposed them to legal action or at least a settlement since they did not adhere to the required protocols. This isn’t just about infringing upon someone’s right to their religious beliefs; it’s about not following the laws set out by the New York State Health Department regarding who is permitted to dictate the proceedings after death.

Regarding the crematory’s liability, it’s only partially clear if the family directly interfered. Typically, the funeral home is more involved, especially since we have specific procedures for when someone comes to collect the cremated remains. Before cremation, a designated individual, if not the direct next of kin, must be identified to pick up the remains. At the time of collection, they must present identification and sign forms taking responsibility for them. Like any process, there’s a checklist of procedures to ensure everything is done correctly. Shortcuts can lead to unfortunate outcomes.

I have dealt with families in interfaith marriages who disagree with the surviving spouse’s wishes. However, under New York State law, whether fortunately or unfortunately, the surviving spouse holds the decision-making power.

Elan Wurtzel, Esq.: The right of sepulcher often comes up in the context of a funeral home mishandling the remains of someone who has passed away, and the most common mishandling involves burying the person in the wrong place or placing the wrong body in a specific grave and then somehow it’s discovered. There have been many reported cases where there’s a viewing of the deceased before the service or burial. You can imagine the pain and suffering a family experiences when they are having their final viewing and they discover just moments before the funeral service that the body in the casket is not their loved one. It’s a painful moment.

Adam Novak: That’s something that keeps me up at night. But you have to understand; I will take the funeral director’s point of view on this nine times out of ten. There are times when someone wants to view their loved one, and you’ll open the casket for them, and they’ll step back, shocked, saying, “My God, it doesn’t look like him.” It doesn’t look like them because it’s a shocking view to see your loved one, even if they’re cleaned up and dressed and look appropriate, in a casket, in that state.

So, we try to ask questions delicately from there: Does it not look like them for specific reasons, or is it that you genuinely believe it’s not them? Then, you have to trace it back from there. But, as I said before about forms, we have dedicated forms for people to fill out that says, “I have viewed it; this is my loved one,” or “It’s not my loved one,” or “I refuse the ability to look,” because, in the Jewish religion, viewing isn’t mandatory. The funeral director is the first checkpoint. Ideally, at least one representative who knew the person would look in and make sure. The grave is a gray area, but the responsibility doesn’t always solely fall on the funeral home, and I will explain why.

The process at certain cemeteries requires a permit and sometimes authorizations from temples, religious organizations, civic organizations, and social organizations – Knights of Pythias or there might be a sizeable social lodge from way back when, the United Postal Workers have a society, the New York City Police Department has a burial society. The funeral director is charged with calling those representatives and securing the right to bury them. When I call those representatives, I don’t know which grave should be the family’s. If there’s a spouse already there, it makes things much more accessible; if grandpa has passed away, grandma should go next to him. But if this is the first burial there, it makes it hard. So, when we get to the cemetery, and someone says, “My gosh, this is not where he or she is supposed to be,” I have to take that seriously.

But we must also return to the cemetery and the organization because it’s not just the funeral home. The organization and the cemetery also approve all of these burials. The key is that sometimes people don’t stop and think and go the extra mile to ask. They see upset at the grave; you need to know why. People will be upset for several reasons that have nothing to do with the funeral director, but you must delicately ascertain why the person is upset and why they might not think it’s in the right place. Again, it’s so subjective. If you have a loved one at that cemetery, in those grounds, and you visit them, great-grandma’s there, but suddenly, you’re burying someone there. It’s winter, and there’s snow, or the cemetery has to move a headstone to get to the grave. It’ll look different than when you’ve been there before.

It could be a matter of explaining that the stone was moved. “Look here, it’s going to be put back by the cemetery workers, but they needed to move it to open that grave,” things like that. Or we’ve gotten to the cemetery where they dug the wrong grave and needed to get the map out. They brought the map there, and they were wrong, and we had to wait. Everyone has to give a little. Then I apologized and gave a little discount, and the cemetery refunded the money. In the end, the person was put in the proper place. Mistakes sometimes happen just like anything else; it could be an error. The importance is to have a level head and make sure that you dot the i’s, cross the t’s, and see the concerns.

Elan Wurtzel, Esq.: one thing that Adam is bringing out is that this is a very emotionally-laden time in people’s lives. It could be very unexpected death or something that was expected–but whoever’s passed away is loved usually by the family that is there, and it can be very, very traumatic if a body is mishandled or the wrong body is viewed. The emotional trauma is very real and heartfelt, which is why these cases resonate with judges and juries. We’ve all had a loved one pass away and we all want to be treated with respect and depending on the mistakes made and the level of negligence it could result in a very significant recovery for a family.

We were involved in a case involving a couple who weren’t married, but had a long-term committed relationship. The gentleman passed away. He had two adult children from whom he was very estranged and had no relationship with. He had a loving, long-term relationship with his companion, and they had discussed what they would do regarding burial and funeral; they made plans and purchases, etc. He passes away unexpectedly. His companion wants to make the arrangements, but his daughters say no way, we’re going to take care of everything; they did it in a way in total disregard for their father’s wishes and in total disregard of their father’s companion’s wishes and plans.

What can you do in these situations? There’s a legal instrument called an Appointment of an Agent to make Funeral and Burial decisions. It’s like a power of attorney, but limited to funeral and burial decisions. You actually appoint the person that you want to make decisions about burial and funeral, and in the same instrument, you can set forth what your wishes are: “I want to be cremated,” “I want to be buried in this place,” “I want this kind of service.” So, in a situation with these two unmarried people, under New York law, the father’s two surviving children had the absolute right of priority over anyone else to make decisions. But they totally disregarded their father’s wishes. Their father could have ensured that his wishes were followed by having this kind of legal document prepared. Adam, have you come across this document where family members show it to you, and they’re authorized to do something?

Adam Novak: Yes, and you’re right. Often, it concerns people trying to protect themselves from estranged family members. I had this with a couple that were together but not married, and the spouse that passed had never gotten a formal divorce, so they were still legally married to someone else. Over time, they just let it go and were separated, but not legally. But they had this document, and the partner that they were with honored the wishes of the deceased. We also had something else just come up: we had a family where one of the daughters brought the mom in to do a pre-need with a funeral home, funded the pre-need, Mom signed everything. The one daughter who brought her had nothing to do with it legally on the paperwork; Mom funded it.

Fast forward five or ten years, they’re estranged, that daughter and the mom. The other daughter goes to the funeral home and says, “Mom just passed. We’d like to have this service,” in line with the pre-need, did not deviate at all, just everything in line. The funeral home wouldn’t do it; there wasn’t one of these documents about the other daughter, but they said they’d never met this daughter, and they wouldn’t do it. I looked over the paperwork. To me, if Mom’s signing in sound mind and funding a pre-need, that’s her wishes, and no one else signed, then that’s her wishes, and I proceeded with the funeral as per the New York State pre-need.

Adam, tell us about planning a pre-need. What is that exactly?

Adam Novak: Okay, pre-need is the name of the trust. New York State has a trustee who oversees funds that people can pay in advance for their final expenses. You need a funeral director to develop and sign the contract. You come in and make all your choices from the clothing, the casket, the cemetery hearse limo. You can do meals of condolence, Shiva, or whatever you want, whether burial or cremation.

You pay in advance. You have five years to pay into the fund. It starts with an initial deposit. Then you have five years to pay the amount in the contract into the fund. So let’s say, for argument’s sake, you came up with an $8,000 funeral, and you put a thousand dollars down, and you have five years to put the $7,000 into the fund. It’s guaranteed from day one, and my firm ensures all expenses. So that $8,000 will be eight thousand dollars charged to that family. No matter what, unless there’s a material change made. It’s an FDIC-insured account in the person’s name. The accounts are in that person’s name. They’re getting the statements to their name and address so they know what is chosen and what the payment is for.

The only other thing it’s good for is if Medicaid was ever a factor in the person’s life, a planned funeral is not subject to any look back. So if you had money, you could come in and plan for your or a relative’s funeral, and that money is taken right out of the estate and not subject to any lookback.

Elan Wurtzel, Esq.: Pre-planning is critical. It’s a tremendous benefit. I know when my in-laws passed away, they had engaged in pre-planning. After they passed away, there was nothing for us to think about because they had already made all of own their choices. It was so much easier and simpler for us not having to deal with what we should do this out of the other thing.

I want to Pivot a bit because we’re discussing funerals and cemeteries. If you go into any cemetery, as a personal injury attorney, I always take note because there are so many tripping hazards; pathways are unsafe; the burial grounds are uneven and sunken in.. We had a client attending her father’s funeral; she was approaching the gravesite and took a couple of steps, and she sunk into a grave. She was hurt because of that.

It was a bizarre and scary situation, that presented lots of legal issues about about how the property in that area was being maintained, not sectioning off areas where there may have been recent burials, and make sure the area was safe.

Adam, have you come across something like this?

Adam Novak: Absolutely, cemeteries have to strike some sort of balance within themselves. I don’t understand it. Some grave areas are unkempt because the people didn’t pay for perpetual care. But as you said, it’s putting the cemetery at risk because as you walk past these messy areas, which are never touched, you can encounter issues when the weather changes. We just had some heavy rains; you go to the cemetery, and the ground’s unsettled. Even if there wasn’t a burial at that place, with the snow, they don’t clear a path for you to walk. If you deviate, you don’t know what you’re walking into; they don’t remove it. And a lot of these grounds, I’m sure you’ve seen, they allow different sizes, thicknesses, and placements of monuments.

So, if your vision is impaired by overgrowth, snow, bad weather, or whatever the case may be, you are still determining what you might trip over, aside from falling into something unsteady. It’s a concern every time. I think the same thing because, inadvertently, my thought is if someone gets hurt here during one of my services.

Elan Wurtzel, Esq.: When someone gets hurt in that situation you may not know who is responsible–oftentimes there could be multiple parties: cemetery, funeral director, burial society, etc… A funeral director often has critical information about the events, so it’s likely a funeral director will be made part of any claim or lawsuit. I once represented a burial society that controlled hundreds of grave sites, and the last remaining members were older and couldn’t manage the society any longer. Adam was very generous in agreeing to continue to manage these burial societies. These societies are responsible for maintaining their plots in their area, the cemetery, including the grounds, pathways within their area of the cemetery.

Adam Novak: It’s funny you mention that. The first thing I noticed when I visited the grave areas at New Montefiore—if you are referring to the cemetery—is that there was no curb where the grave area was. It is situated on the corner. There was no curb on that corner, and that’s a cemetery’s responsibility. So if you go there now, there’s a nice, big, beautiful corner curb around that area, forcing them to build up the area around the graves. As you said, it’s society’s responsibility to keep some of those graves in that area safe for people.

Elan Wurtzel, Esq.: Right, it’s interesting you talk about curbs and sidewalks. For example, in New York, homeowner or property owner is generally responsible for maintaining a sidewalk next to your own property. But it’s always the municipality’s responsibility to maintain the curb. If you trip and fall on the sidewalk, it could be the homeowner’s fault; if your trip and fall over a broken curb, it wouldn’t be.. Iit’s interesting: different structures, different responsibilities.

Adam, thanks so much for coming and sharing with us your expertise. Of course, no one wants to die, but it is an important topic, and there’s a lot of concern when people pass away since a lot of different things are implicated.

Adam Novak: Thank you for having me. This was a nice chat. It’s always good to hear it from the other side. You’re a great partner in state planning and dealing with people planning. But it’s also good to have a resource such as yourself. I’ve called you a few times with different things. I won’t mention where, but I just emailed you about one of these cases to get your opinion and what I can do to shield and isolate my company from what had happened to these other organizations. Thank you for having me. This was an excellent talk, and I look forward to more of these if there’s ever an opportunity.

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