When relatives of a deceased person in Arkansas refuse or can't afford burial, can the county pay for it?

Plain-English summary

A prosecuting attorney asked the AG whether a county could pay burial or cremation expenses for an individual whose relatives had been located but were unable to pay (Question 1) or refused to pay (Question 2).

The AG read both questions as concerning "unclaimed bodies": a body for which, after the county's diligent search for a person with a legal right to custody, either no such person was found or such a person was found but declined to exercise the right to custody. The AG concluded that in defined circumstances, a county has authority both to order the burial/cremation and to pay its expenses. Once relatives waive their right to custody (which happens, among other ways, when they are "unwilling to assume the liability for the costs of such [funeral and burial] arrangements"), the county's authority to act is no longer affected by their willingness or ability to pay.

The AG mapped three possible scenarios:

1. No relatives found after diligent search. County has authority to order and pay.
2. Relatives found, body claimed. Relatives exercise the right of sepulcher. County has no authority and the question moots.
3. Relatives found, body unclaimed. Relatives have a right but decline or waive it (by inaction or by refusing to assume liability for costs). Statutory waiver applies and the county may act.

The AG read the relevant statutes as assuming, without expressly declaring, that counties have that authority following a waiver. The opinion did not say specifically which county fund the burial costs come from, only that the authority to pay exists.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Arkansas law establishes two related statutory schemes governing unclaimed bodies and disposition rights:

The Unclaimed Bodies Act (Ark. Code Ann. §§ 20-17-701 to -710) requires that if relatives cannot be found, the county notify the head of the Division of Anatomical Education at the University of Arkansas for Medical Sciences that the body is "available for use in the advancement or study of medical science." § 20-17-703(a). If the body is unsuitable for anatomical study, the county must ensure that the body is "disposed of in accordance with existing laws, rules, and practices for disposing of unclaimed bodies." § 20-17-708(b).

The Final Disposition Rights Act (Ark. Code Ann. § 20-17-102) codifies the bundle of rights known at common law as the "right of sepulcher." The right of sepulcher is the next of kin's right to perform a proper burial; Arkansas courts recognize the underlying common-law right even if they don't always use the term (Travelers Ins. Co. v. Smith; Neff v. St. Paul Fire). Section 20-17-102 lists who has the right to control disposition, and § 20-17-102(d)(1)(J) provides that if no relative will exercise the right, control "vests in ... any representative of ... a political subdivision thereof that has the statutory obligation to provide for the disposition of the remains of the decedent."

The AG noted a textual gap: no Arkansas statute now expressly obligates political subdivisions to dispose of unclaimed bodies. A pre-1977 statute did make the county court's duty to provide for pauper burial explicit, but it was repealed by Act 742 of 1977 (see Op. Att'y Gen. 2006-011). The current statutes assume, without saying, that the county has the authority. Combined with longstanding practice, the AG read the framework as supporting county authority.

Waiver of the right of sepulcher can occur by inaction (after a certain period) or by refusing "to assume liability for the costs of such [funeral and burial] arrangements." § 20-17-102(e)(1)(B)-(C). The AG read "refusing to assume liability" as including both unwillingness and inability to pay. That reading rests on the statute's intent to codify the common law on waiver (Dutton v. Brashears Funeral Home; Teasley v. Thompson) and on the broader common-law rule that the right of sepulcher passes if the primary holder relinquishes it or fails to assert it.

Common questions

Do relatives have to actually refuse in writing for the waiver to apply?

Not necessarily. The statute identifies refusing to assume liability for costs as one form of waiver, but the common law also recognizes waiver by failure to assert the right within a reasonable time. Whether a particular failure or refusal qualifies is a fact question.

Does inability to pay count as a waiver?

The AG concluded yes, reading § 20-17-102(e)(1)(B)-(C) together with the common-law waiver doctrine. The statutory language about being "unwilling to assume the liability" is functionally satisfied when a person is unable to pay, because the result is the same: the person does not assume liability.

Who actually orders the burial?

The statutes do not name the specific county officer, but they vest control in "any representative of ... a political subdivision thereof that has the statutory obligation to provide for the disposition of the remains" (§ 20-17-102(d)(1)(J)). In practice, this typically falls to the county coroner or to whoever the county designates by ordinance.

Are there funeral homes the county must use?

The opinion does not address the procurement question. The Unclaimed Bodies Act also requires notification to UAMS for potential anatomical study before commercial disposition. § 20-17-703(a).

Citations

• Ark. Code Ann. § 20-17-102 (Final Disposition Rights Act)
• Ark. Code Ann. § 20-17-102(d)(1)(J) (vesting of right in political subdivision after waiver)
• Ark. Code Ann. § 20-17-102(e)(1) (waiver provisions)
• Ark. Code Ann. § 20-17-102(e)(1)(B)-(C) (waiver by refusal to assume liability)
• Ark. Code Ann. §§ 20-17-701 to -710 (Unclaimed Bodies Act)
• Ark. Code Ann. § 20-17-703(a) (UAMS notification)
• Ark. Code Ann. § 20-17-708(b) (disposition consistent with existing laws and practices)
• Act 742 of 1977 (repealed prior pauper-burial statute)
• Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999) (common-law right of sepulcher)
• Neff v. St. Paul Fire and Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990)
• Dutton v. Brashears Funeral Home, 235 Ark. 120, 357 S.W.2d 265 (1962) (waiver by inaction)
• Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942) (waiver by surviving spouse)
• Op. Att'y Gen. 2006-011 (history of pre-1977 pauper burial statute)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-068
October 5, 2015
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Robert T. Rodgers, II
Prosecuting Attorney
202 North Springfield
P.O. Box 536
Berryville, Arkansas 72616
Dear Mr. Rodgers:
I am writing in response to your request for an opinion on the following two questions:

1. Is it lawful for a county to pay burial/cremation expenses for an individual with located relatives who are unable to pay?
2. Is it lawful for a county to pay burial/cremation expenses for an individual with located relatives who refuse to pay?

RESPONSE

I take both your questions as referring to the burial/cremation of an unclaimed body. In order to answer your questions, I will need to examine their presuppositions: namely, that it is lawful for a county to order a burial/cremation and pay its expenses. For reasons explained below, I conclude (1) that, at least in certain circumstances, it is lawful for a county to order a burial/cremation and to pay its expenses; and (2) that if the located relatives have waived their right to custody of the decedent's body, then their unwillingness or inability to pay the burial/cremation expenses is irrelevant to the county's authority to pay.

DISCUSSION

I take both your questions as referring to the burial/cremation of an unclaimed body. Your questions presuppose that the county has the authority both to order a burial/cremation and to pay for it. In my opinion, both presuppositions are, in certain circumstances, correct. Because an explanation of why those presuppositions are correct helps resolve your two questions, I will first examine those presuppositions before directly addressing the questions.

No statute directly authorizes counties to order the burial/cremation of an unclaimed body. But two statutes (when read together) seem to indicate that, after conducting a detailed but unfruitful search for the decedent's nearest relatives, the county has the authority to dispose of the unclaimed body.

The rules governing the search for the nearest relatives help explain how the county gets authority to dispose of the body. Arkansas law establishes a detailed framework for a county to follow when it obtains legal control or custody of an unclaimed body. The county must conduct a diligent, sequential search for certain relatives. By both common law and by statute, relatives can waive their rights to the custody or control of the decedent's body. By statute, one waives the right to control by, among other things, being "unwilling to assume the liability for the costs of such [funeral and burial] arrangements."

At the conclusion of that search, Arkansas law seems to assume, without explicitly declaring, that the county has the authority to order and pay for the burial/cremation of the unclaimed body. One statute states that if, after the diligent search, the county cannot find any relatives who will exercise their right to custody and control of the decedent's body, then "[t]he right to control the disposition of the remains ... the location, manner, and conditions of disposition[,] and arrangements for funeral goods and services to be provided vests in ... any representative of ... a political subdivision thereof that has the statutory obligation to provide for the disposition of the remains of the decedent...." The problem with this language is that there are no other statutes that obligate political subdivisions to dispose of the remains of unclaimed bodies.

A similar problem arises with another statute that addresses unclaimed bodies. Section 20-17-703(a) states that if, at the conclusion of the search for relatives, no relatives can be found, then the county must notify the "head of the Division of Anatomical Education" at the University of Arkansas for Medical Sciences "that the body, if unclaimed, is available for use in the advancement or study of medical science." If the body is deemed unsuitable for anatomical study or research, the county must ensure that the body is "disposed of in accordance with existing laws, rules, and practices for disposing of unclaimed bodies."

There are no "existing laws" that clearly and directly govern how a county is supposed to dispose of unclaimed bodies. But there are longstanding practices and rules governing a county's authority over unclaimed bodies. When the foregoing, emphasized language was added to Arkansas's law in 1959, a longstanding statute clearly made it the county court's duty to make allowance for the burial of paupers. While this statute no longer exists (it was repealed by Act 742 of 1977; Opinion No. 2006-011 goes into more detail on the history leading up to the 1977 repeal), the statute gave rise to a practice of counties having the authority to order and pay for burial/cremation of unclaimed bodies.

The foregoing shows that the county does have the authority to order and pay for the burial of some unclaimed bodies, but that authority is conditional. That is, the authority is conditioned on the outcome of the county's diligent search for relatives. There are three possible outcomes of that search:

• Scenario 1: no relatives found. The search could result in no relatives being found. In that case, the county would have the authority, pursuant to the foregoing analysis, to order and pay for the burial/cremation of the unclaimed body.
• Scenario 2: relatives found, body claimed. The search might result in finding nearest relatives who exercise their right to custody and control of the decedent's body. This right is an ancient common-law right known as the "right of sepulcher," which is now codified at Ark. Code Ann. § 20-17-102. Because this scenario moots your questions, I will not address it further.
• Scenario 3: relatives found, body unclaimed. Finally, the search might result in finding relatives who have a right, under the right of sepulcher, to the decedent's body but, for whatever reason, refuse to exercise that right. As noted above, the relative's right can be waived by inaction (after a certain amount of time) or by refusing "to assume liability for the costs" of the funeral and interment. As explained below, this refusal "to assume liability for the costs" of a funeral and interment includes both being unable to pay and unwilling to pay.

Your questions relate to Scenario 3. They posit a situation in which the county has located a relative (a) who has a right under the statute to control over the disposition of the body, and (b) who has waived that right. Question two posits a relative who has waived by being able but "unwilling" to assume the liability for the decedent's disposition. For, as noted above, one waives the right to disposition (by statute) by, among other things, being "unwilling to assume the liability for the costs of such arrangements."

Question one posits relatives who have waived by failure to exercise control over the decedent's body because they are unable (and thus willing) to pay the costs of the funeral and interment. While this is slightly less clear than question two, the failure to exercise control over the body certainly amounts to a common-law waiver. It is my opinion that it also amounts to a statutory waiver, as the statutory language was intended to codify the common law in this respect.

Accordingly, in my opinion, the answer to both questions is that the relatives have waived their right and that the waiver vests the county with the authority to order and pay for the body's burial/cremation.

Sincerely,
Attorney General