Dealing with Burial Costs: Understanding A Municipality's Obligation

By Nolan Koon, Esq.

Questions sometimes arise regarding a municipality's welfare obligations with respect to burials. Certainly, a municipality has a legal duty to provide assistance to the indigent. The application of this basic legal duty, however, can potentially cause uncertainty when dealing with the cost of burials. The following is a brief overview of a municipality's welfare burial obligations.

Q. By way of background, what is the legal basis for a municipality's general duty to provide welfare?

A. RSA 165:1, I provides that whenever “a person in any town is poor and unable to support himself, he shall be relieved and maintained by the overseers of public welfare of such town, whether or not he has a residence there."

Q. Is a municipality required to provide aid assistance to non-residents?

A. Yes. As stated above, under RSA 165:1, I, it is immaterial whether or not an aid applicant is a local resident.

Q. Is a municipality required to have written guidelines for aid eligibility?

A. Yes. In Baker-Chaput v. Cammet , 406 F.Supp. 1134 (1976), the U.S. District Court stated that written welfare guidelines are an “elementary and intrinsic part of due process." Further, under RSA 165:1, II, the guidelines must include, at a minimum, the following: (a) the process for application for general assistance; (b) the criteria for determining eligibility; (c) the process for the application of rents under RSA 165:4-b, if the municipality uses the offset provisions of RSA 165:4-a; and (d) a statement that qualified state assistance reductions may be deemed as income, if the local governing body has permitted the welfare administrator to treat a qualified state assistance reduction as deemed income under RSA 165:1-e.

Q. Should a municipality include a policy regarding the burial of assisted persons in its guidelines?

A. Yes. In order to avoid any confusion regarding its obligations, a municipality should include reference to its statutory duty to provide for the burial of assisted persons.

Q. What is a municipality's legal duty with respect to the burial of assisted persons?

A. Under RSA 165:3, if an assisted person dies in a municipality, the overseers of public welfare are required to provide the decedent a “decent" burial or cremation at the municipality's expense.

Q. Is a municipality under a similar obligation if the assisted person dies in a county nursing home located outside the municipality?

A. Yes. If an assisted person dies in a county nursing home, the municipality “shall cause such person to be decently buried or cremated at the expense of the" municipality where the person was a resident at the time the decedent entered the county nursing home.

Q. Is a municipality under an obligation to provide for the burial or cremation of veterans who served during an armed conflict and are unable to pay for the expenses of his or her funeral?

A. Yes. RSA 165:16 provides that a municipality in which a veteran dies shall pay for the decedent's burial under the following circumstances: (a) the decedent was a New Hampshire resident; (b) who served in the military; (c) during an armed conflict as set forth in RSA 165:17; (d) for a total of 90 days (unless discharged earlier because of a service related disability); (e) who was not dishonorably discharged; and (f) did not have a sufficient estate to pay for his or her funeral, or was on public assistance. Under the statute, a municipality may retain funds for burial expenses received from the Department of Veterans Affairs (DVA) and request that the DVA provide a suitable monument.

Q. Under certain circumstances, can a funeral home take an assignment of an estate's assets for funeral and burial or cremation expenses?

A. Yes. Except when an assisted person has made arrangements for a prepaid funeral, a funeral director (or the person who paid for the funeral and burial or cremation) enjoys an automatic assignment up to $1,000 where the decedent's total liquid assets are less than $1,000. RSA 165:27-a. The assignee may submit a notarized statement documenting the expenses to the entity holding the assets. The entity making the payment must provide a receipt to the assignee as well as a copy to the governing body. If no assets remain after the payment, then the entity making the payment must notify the probate court having jurisdiction over the estate.