Funeral Home Malpractice: Suing for Improper Handling and Unauthorized Cremation

When you entrust a funeral home with your loved one’s remains, you have every reason to expect them to be handled with care and according to your instructions. An unauthorized cremation, body mix-up, commingling of remains, or improper handling can have devastating consequences. Depending on the facts, the funeral home may face a lawsuit based on negligence, breach of contract, fraud, or emotional distress.

For legal help, find a funeral home negligence attorney through the Super Lawyers directory to talk about what happened.

What Is Funeral Home Malpractice?

The phrase “funeral home malpractice” sounds like a legal claim, but it doesn’t work that way in every state. A funeral home or mortuary can potentially be held responsible under several different areas of law.

For example, a surviving spouse or next of kin may have a claim when a provider breaches its agreement, handles remains negligently, violates a legal requirement, or deliberately engages in misconduct.

A claim against the funeral home or crematory is not the same as a medical malpractice or wrongful death claim. A medical malpractice claim addresses the health care someone receives while alive; a wrongful death claim addresses the actions leading up to death. The funeral home is responsible for the disposition of remains after death.

What Are the Legal Grounds for Suing a Funeral Home?

There isn’t a one-size-fits-all lawsuit for funeral home misconduct. The circumstances determine which legal claims may apply, and that can also affect what type of attorney you need.

A contract dispute, negligence claim, or case involving intentional misconduct may require different legal experience. Before deciding who to hire, it helps to understand the legal theories that may apply to your situation.

Breach of Contract

The funeral home and the deceased’s family members will sign a contractual agreement for the services provided. When the funeral home fails to perform its obligations under the agreement, it may be in breach.

Common examples of a funeral breach of contract claim include performing an unauthorized cremation, failing to provide services, or failing to follow specifically included instructions from the family.

Negligence

Families have a reasonable expectation that a funeral home will handle their loved one’s remains with care. When a funeral home fails to do that, it could support a claim of negligence.

Generally, the family must establish that the funeral home owed a duty, failed to meet that duty, caused the harm, and that the harm resulted in legally recognized damages.

A negligence claim could arise from improper identification of remains, mishandling a body, or failing to follow established procedures. Similar claims may arise from cemetery negligence when the problem occurs during burial or while remains are under the cemetery’s care.

Intentional Infliction of Emotional Distress

In some states, particularly outrageous conduct by a funeral home may support an intentional infliction of emotional distress (IIED) claim. IIED generally requires more than negligence. The conduct must typically be sufficiently extreme or outrageous to satisfy the law of the state where the claim is brought.

A family may be devastated by a funeral home’s negligence, but the emotional impact alone doesn’t necessarily turn the conduct into an IIED claim. An attorney can evaluate whether the conduct rises to the level required for an IIED claim.

Negligent Infliction of Emotional Distress

In some jurisdictions, negligent conduct that causes serious emotional harm can support a negligent infliction of emotional distress claim.

These claims vary significantly by state, including when emotional distress is compensable and what a plaintiff must prove. That distinction matters in funeral home cases because the negligent mishandling of a loved one’s remains can cause substantial emotional suffering even when there is no traditional physical injury.

Fraud or Misrepresentation

A mistake is one thing. Intentionally misleading a grieving family is another. A fraud or misrepresentation claim may arise when a funeral home knowingly makes a false statement or conceals material information.

This could include falsely telling a family that a cremation was performed according to its instructions when it wasn’t. Because fraud generally requires intentional deception, a family must show more than an error or failure to fulfill a contract.

What Types of Funeral Home Mistakes Can Lead to a Lawsuit?

Not every funeral home mistake leads to a lawsuit, but some errors can create serious legal problems. The circumstances surrounding the disposition of remains, who was responsible, and whether the provider followed the applicable standard of care all matter.

Unauthorized Cremation

A wrongful cremation can happen when a funeral home or crematorium proceeds without the required authorization. An unauthorized cremation or burial may violate state law and leave a family with no way to undo what happened. Other cremation errors, such as cremating the wrong person or failing to follow required procedures, can also result in legal claims.

Commingling or Misidentification of Remains

Families trust funeral providers to know exactly whose remains they are handling. Misidentification, commingling, or other mishandling of remains can violate that trust and potentially support a legal claim. Identification and tracking procedures may become especially important when determining whether a funeral home, crematory, or crematorium followed the required standard of care.

Improper Embalming or Preparation

Improper embalming or poor preparation of remains may also lead to a dispute with a funeral home.

Depending on the circumstances, a provider could face liability for failing to properly preserve, prepare, or care for remains, including leaving them improperly stored. Whether the conduct was negligent generally depends on the applicable standard of care and state law.

Body Mix-Ups and Wrongful Delivery

A family should receive the correct remains, but mistakes can happen when a provider fails to identify or track a body properly.

Mishandling the body during transportation, preparation, storage, or delivery can result in a body mix-up or wrongful delivery. Depending on who was responsible, the issue may involve a funeral home, cemetery, or crematory.

How Do You Sue a Funeral Home for Mishandling Remains?

If you believe a funeral home mishandled your loved one’s remains, start by preserving the documents and communications related to the funeral arrangements.

Keep the contract, authorization forms, receipts, emails, texts, and any records showing how the remains were handled or disposed of. An attorney can use those records to reconstruct what happened, determine who may be legally responsible, and evaluate whether the facts support a contract, negligence, emotional distress, fraud, or other claim.

A lawyer can lead the lawsuit, if appropriate. They can file the complaint, gather additional evidence, negotiate with the funeral home, and take the case to trial. Not every lawsuit goes to trial. Many civil claims are resolved before trial through settlement or mediation.

What Evidence Is Needed in a Funeral Home Malpractice Case?

Evidence can make or break a funeral home malpractice claim. Start by preserving the funeral home contract, written arrangements, cremation or disposition authorizations, and any records showing how the remains were identified and handled.

Keep emails, text messages, letters, and other communications with the funeral home, along with photographs or video and statements from people who witnessed what happened.

Internal funeral home records, inspection reports, regulatory complaints, and disciplinary records may also be relevant. Depending on the claim, an attorney may also use expert testimony to address the applicable standard of care.

What Damages Can You Recover?

Available damages depend on the specific facts and the jurisdiction where the claim is brought. Economic damages are typically available in all jurisdictions. These are financial losses a family can document. Examples of economic damages include out-of-pocket funeral expenses or the cost of correcting a funeral home’s mistake.

Some states also allow recovery for emotional distress or pain and suffering when a funeral home’s wrongful conduct causes serious emotional harm.

Punitive damages may be available for some cases. Unlike other types of damages, punitive damages are intended to punish the defendant, not make the plaintiff whole. So they are reserved for situations that have a sufficient level of malicious, fraudulent, or reckless conduct, including gross negligence.

Not all jurisdictions allow punitive damages. Some jurisdictions also limit the amount of punitive damages that can be awarded.

Who Regulates Funeral Homes and Mortuaries?

Funeral homes and funeral directors generally face state-level licensing and regulatory requirements. Depending on the state, a funeral or mortuary board, licensing agency, or another state authority may oversee the industry and investigate complaints.

The Federal Trade Commission (FTC) also regulates certain aspects of funeral providers’ dealings with consumers through the Funeral Rule. Families may also report misconduct to a state attorney general or other government agency. A regulatory complaint is separate from a civil lawsuit, however, and an agency investigation doesn’t necessarily result in compensation for the family.

Seek Legal Advice

Funeral homes are entrusted with an enormous responsibility, and serious mistakes can carry serious legal consequences. An attorney can investigate what happened, gather the necessary evidence, determine which claims may apply, and pursue available damages on your behalf.

For help finding the right legal professional, search the Super Lawyers directory for a funeral home negligence attorney experienced in the type of claim you’re facing.