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Introduction

Death is an expensive proposition. The economics of life do not end with death, and putting the deceased to rest carries (often unexpected) 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 particularly stark given that four out of ten Americans would have difficulty 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 informed decision-making and purposeful saving, the options for pre-need prepayment are severely limited, with disadvantages that frequently outweigh benefits.

It is important to consider the way in which unremarkable, mundane, unconsidered expenses perpetuate inequality and contribute to intergenerational cycles of poverty, and this issue has been heretofore relatively unexplored by the legal academy in the context of death service expenses.10 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, it was raised before Parliament.13 In South Africa, economists found that the households studied between 2003 and 2005 spent an average 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 assistance program with eligibility for those with low incomes, with an average subsidy of £1372 in 2017/2018.15 And notably, the Swedish have preempted the need to have any conversation: all residents are entitled to burial services and charged a mandatory scaled fee for expenses on the resident’s annual tax statement, with financial assistance (if needed) from the municipal social services office.

In the United States, we are extraordinarily distanced from death and have largely moved the process from home to institution. After the Great Depression and World War II, life expectancy 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 organic and necessary end of the life cycle has created a “death illiteracy” 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 addressing 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 parts positive, normative, descriptive, and prescriptive: it is imperative 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 limited options (beg, borrow, surrender) that are available to assist the struggling consumer. The structure of any marketplace influences consumption, and Part III considers gaps in marketplace regulation that highlight or exacerbate structural features such as uncertainty 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 responsive to the unique structural features of the death services marketplace, by which funeral poverty issues may be comprehensively addressed in the United States.

Victoria J. Haneman*

* 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 encouragement. 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. Finally, my heartfelt gratitude to research assistants Sarah K. Mielke and Thomas R. Norvell for attention to detail and impressive editing skill.

 

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