Funeral home and cemetery negligence happens when the people responsible for caring for a loved one’s remains fail to do what they’re supposed to do, whether that’s a funeral home mishandling remains or a cemetery losing track of who’s buried where. One of the most serious versions of this is confusion over whether the remains you received are actually your loved one’s.
- What Is Funeral Home and Cemetery Negligence?
- How to Vet a Funeral Home Before You Need One
- Common Types of Funeral Home Negligence
- Common Types of Cemetery Negligence
- Proving Negligence and What Damages Can Look Like
- What to Do If You Suspect Something Went Wrong
- Funeral Home and Cemetery Negligence FAQ
- What is funeral home negligence?
- What is cemetery negligence?
- How can I check whether a funeral home is reputable before I use it?
- Does a funeral home have to carry insurance?
- What if I think my loved one's remains were mixed up?
- Who has to approve a cremation?
- What should I do if I suspect a mistake was made?
- Talk to Kaminsky Law
- Related Reading
What Is Funeral Home and Cemetery Negligence?
Funeral home and cemetery negligence covers two related but separate responsibilities.
A funeral home’s duty runs from the moment someone passes away through everything leading up to burial or cremation, essentially the whole window while they have possession of your loved one’s remains. A cemetery’s duty is different: it concerns the burial itself, and it can last far longer, spanning from the moment you purchase a grave until the last person entitled to use that space is actually buried there, sometimes decades later.
In both cases, negligence means some kind of interference with a family’s ability to properly care for their loved one and get closure: something wasn’t done the way it should have been.
Pennsylvania actually has a specific rule connecting the two: a funeral director or someone from the funeral home has to be present at the cemetery for the burial itself. If no one from the funeral home showed up for that part of the process, that alone is worth paying attention to.
How to Vet a Funeral Home Before You Need One
The firm gets a large number of calls about funeral home problems, and one of the first questions that comes up before taking a case is collectibility: even if a funeral home clearly did something wrong, is there actually anything to recover? The biggest red flag in that evaluation is a family-owned or single-person-owned funeral home that hasn’t been around long, or one that keeps changing hands.
Because of that, the most valuable thing you can do is research a funeral home before you ever need to use it.
Search for lawsuits and judgments. In Pennsylvania, you can search county court dockets and judgment records to see whether a funeral home has been sued or already lost in court. A docket search shows the history of lawsuits and proceedings against a business; a judgment search is simpler, showing whether a court has already ruled against them and awarded money. Viewing the list of entries is free, though pulling individual case filings costs money. In one case, a search like this turned up a funeral home that already owed the IRS roughly half a million dollars, plus hundreds of thousands more to other people from lost cases. Because that business had no realistic ability to pay a new judgment, the firm didn’t take the case, even on a contingency basis, since a contingency fee only pays if there’s actually money to collect.
Check for insurance. A funeral home can carry general liability insurance (the kind that covers something like a slip-and-fall on the premises) without carrying funeral negligence or funeral director’s insurance, the coverage that actually applies to mistakes made performing funeral services. This type of insurance isn’t required by the state, so a funeral home can legally operate without it, and that can leave a family with no real way to recover even when something clearly went wrong.
Watch for red flags. A few signs are worth paying attention to when you’re choosing a funeral home:
- It operates out of a small, non-standalone location, like a house or basement.
- Staff are short or curt with you, or pressure you to pay quickly or leave them alone.
- They push unusual payment methods (cash only, Venmo) instead of allowing a check.
- You’re dealing with one salesperson whose name doesn’t match the licensed business.
- Staff don’t return calls, or avoid putting anything in writing.
- There’s no standard price list, just improvised pricing.
Larger, chain-style funeral homes with a consistent name across multiple locations tend to be more established and more likely to carry proper insurance. And if you feel pressured or rushed to sign something, put down a deposit, or pay quickly, that’s itself worth slowing down for: it’s worth considering more than one funeral home rather than committing to the first one you talk to.
There’s realistically not much you can independently verify about how well a cemetery keeps its records or whether a reserved plot is actually being held for you; it’s hard to tell what’s happening underground or in someone else’s files. One thing that can help is reading a cemetery’s own rules and regulations before buying plots, and asking directly how many spaces are available and what safeguards exist against mistakes, even if that feels like an uncomfortable question to ask upfront. A reputable, customer-service-oriented cemetery should be willing to walk you through specifics, like showing you the exact dimensions of your plot, rather than leaving you uncertain.
If a funeral home does make a mistake and offers to resolve it directly with you, that conversation is worth having, but it’s worth getting a lawyer to review any settlement or waiver before you sign anything. Accepting a quick payout can mean signing away a claim that may have been worth significantly more.
Common Types of Funeral Home Negligence
Funeral home negligence ranges from minor mix-ups, like a service that isn’t ready on time or embalming that isn’t finished on schedule, causing a postponement, to much more serious problems. On the more serious end: someone getting cremated before family had a chance to say goodbye, or someone getting cremated who wasn’t supposed to be cremated at all. There have also been cases of poor-quality embalming that leaves the deceased looking unlike themselves at the viewing, open caskets containing someone else’s remains, and families receiving the wrong cremated ashes, including ashes carrying someone else’s name tag.
Confusion over whether it’s actually your loved one. This is one of the most serious types of funeral home negligence. Funeral homes are often relatively high-volume, handling several bodies at once, and that creates real risk of a mixup, especially with closed-casket services or cremation, where family members never actually see the body or remains themselves. With cremated remains, there’s no DNA test that can settle the question afterward, since there’s no DNA left to test. In one case, a family was told their loved one had been autopsied and so shouldn’t have an open-casket viewing, but the medical examiner’s office and the official death certificate confirmed no autopsy had actually been performed, a discrepancy that created serious doubt about whether the funeral home had the right person. A death certificate will state whether or not an autopsy occurred, which gives a fairly reliable way to check that specific fact. Autopsies are typically only performed when cause of death is unknown or foul play is suspected; if the cause of death was already known, for example, a hospital death, an autopsy typically wouldn’t have been performed at all.
Improper embalming. This happens when embalming isn’t done by the funeral director personally, or is done by someone who isn’t properly trained or licensed, and the deceased doesn’t look like themselves for the viewing as a result.
Unauthorized cremation. Because cremation is irreversible, carrying it out without proper authority from the person or people entitled to make that call is treated as particularly serious. This can happen because the funeral home mistakenly believed it had authority when it didn’t, or because it relied on authorization from someone who didn’t actually have the right to give it. Generally in Pennsylvania, cremation decisions require permission from the next of kin, though whether that means all next of kin or a majority depends on the specific situation, including things like a will. Who exactly has to approve a cremation or disinterment gets complicated fast, especially with siblings who disagree, so it’s worth understanding the rules in more depth if you’re facing that situation. It also matters whether the funeral home checked its own records: if they handled a prior family member’s funeral and already had documentation showing there was more than one next of kin, failing to check that before acting on just one sibling’s authorization can itself be a basis for a negligence claim.
Operating without a proper license, or without the right insurance. It’s worth confirming that whoever is handling your loved one’s arrangements is actually licensed, not just a salesperson acting as a middleman for another funeral home. A funeral director is generally only supposed to be licensed to one funeral home at a time, so if the same person appears to be affiliated with several different funeral homes at once, that’s worth asking about. Separately, a funeral home can legally operate without insurance that covers funeral services or cremation specifically. Some carry general liability insurance, covering something like a slip-and-fall, while having no coverage at all for mistakes made in the actual funeral or cremation process. It’s a reasonable question to ask directly: is the license active, and what kind of insurance is actually in place, the same way you’d ask a contractor doing work on your home whether they’re insured. A funeral home is legally responsible for its employees, including trainees; if a trainee makes a mistake, it’s typically the funeral home that gets sued, and the funeral director or manager can also be liable for failing to properly supervise.
Refusing to release remains. A funeral home refusing to release remains to the family, or demanding additional, undisclosed payment before releasing them, is a red flag that can mean a family is being taken advantage of during an already difficult moment. That’s worth discussing with an attorney rather than simply paying whatever is being demanded.
Mishandling, theft, or selling remains. Mishandling or mistreatment of a corpse, theft (including jewelry or other items the deceased was supposed to be buried with going missing), and selling remains without authorization are all serious categories of funeral home negligence, including cases that have made the news.
Sometimes a “wrong body” mixup traces back to a cemetery-side error instead, like confusion over exactly where within the cemetery someone was actually buried, a separate issue from anything the funeral home did.
Common Types of Cemetery Negligence
Cemetery negligence often comes down to poor recordkeeping, especially at smaller, family-run cemeteries where records get lost or garbled as they’re passed down between generations or owners. A common scenario: a family buys two adjoining plots decades earlier, one used right away and one reserved for a surviving spouse, and only on the day of the second burial does the cemetery discover that the reserved plot is already occupied by someone else. When that happens, the general rule of thumb is that whoever legitimately purchased or reserved the plot has the right to be buried there, and the cemetery has to figure out how to fix the error, though the specifics depend on the exact circumstances and the cemetery agreement. Fixing a misburial isn’t necessarily quick: it can mean locating the family of the person mistakenly buried there, and if that family doesn’t agree to move them, going to court for an order to do it.
A few other common categories:
- Inability to bury on the scheduled date. This is only actually negligent if the delay traces back to something wrong with the grave itself that the cemetery should have caught, not something like bad weather or unexpected groundwater discovered while digging.
- Grave space not being available. The plot-already-occupied scenario above.
- Burial at an incorrect depth, including double-depth burials, where the first burial in a shared plot is supposed to go deeper (roughly 8 to 9 feet) so a second burial can later go at around 6 feet. Pennsylvania law requires roughly 12 to 18 inches of soil on top of a burial container; if a casket is flush with the ground with no visible covering, that requirement wasn’t met. This gets into a lot of specific mechanics worth understanding on their own if you’re dealing with a double-depth burial question.
Cemeteries also normally move headstones temporarily during a nearby burial, to get equipment in, and put them back afterward; that alone is routine and not negligent. Problems come up when a moved headstone doesn’t get put back in the right place, or doesn’t get put back for a long time, and the cemetery doesn’t have, or doesn’t rely on, accurate enough records to confirm exactly where it belongs. In one example, a cemetery discovered years later that a headstone had actually been in the wrong spot the entire time, corrected it, but never told the family, leaving them confused and uncertain the next time they visited. Once a placement error like that has happened, the negligence already occurred at that point, whether or not the cemetery eventually fixes the marker or tells the family.
Proving Negligence and What Damages Can Look Like
Whether a funeral home or cemetery actually did something wrong is sometimes easy to establish, especially if they admit the mistake, and sometimes harder. A general feeling of uncertainty about how a situation was handled, even without solid proof of an outright error, can itself be a sign that something went wrong. And the fact that confirming a mixup might require exhuming remains is part of the harm itself: families shouldn’t have to disturb a resting place just to get certainty that good recordkeeping should have already guaranteed. Even if you don’t want to pursue exhumation to get that certainty, that alone doesn’t mean there’s no legal claim or path to some form of accountability.
Establishing liability is often the more straightforward part. The harder question in a lot of these cases is what the actual damages are. There’s a legal concept called the “eggshell plaintiff” rule: a defendant is responsible for the full extent of harm they caused to a particular plaintiff, even if that plaintiff turns out to be unusually affected by it. That concept applies here because damages vary enormously from person to person, depending on someone’s beliefs, their relationship to the person who died, and how personally sensitive they are to this kind of situation. For some people, the emotional distress of not knowing whether the right person is in the grave escalates into real physical harm: trouble sleeping, changes in eating, depression, or an inability to function at work. Because of that variation, the real question in evaluating a case isn’t a one-size-fits-all standard, it’s what that specific person actually experienced and how they were personally affected.
Part of why funeral homes and cemeteries carry a heightened responsibility here is that families are trusting them as experts with something they, as laypeople, generally can’t verify on their own, similar to trusting an accountant with your taxes. You typically have no independent way to confirm whether the right person was autopsied, or properly identified; you’re relying entirely on what you’re told.
What to Do If You Suspect Something Went Wrong
Most people haven’t experienced many funerals, and in the moment, you’re already emotional, which makes it hard to trust your gut or know what to do next. If something feels wrong during a viewing or service, documenting it in the moment, a photo or video, tends to hold up better than a text message or email sent later, which can just turn into “he said, she said.”
Families are often reluctant to reach out about a suspected problem in the first place. It’s common to doubt your own perception, worry about burdening other family members with bad news, or even be told by someone else, sometimes a medical examiner’s office, not to bother calling a lawyer. On top of the legal side, it’s worth seeking grief counseling or therapy too: taking on legal stress on top of grief without any outlet can get in the way of actually being able to grieve. Lawsuits in this area can take a year or two to resolve, and that prolonged process can itself delay a family’s sense of closure, which is part of why getting closure, not just financial recovery, is one of the real goals in pursuing these cases, including sometimes just confirming that records are accurate without needing to exhume anything.
When you call about a suspected issue, expect to be asked what happened, why you believe there’s a problem, and what specifically concerns you. A few things are worth having ready:
- Any communications you have, ideally in writing (text, email), since disputes often come down to conflicting memories of what was said out loud.
- Pictures, if something looks wrong at a grave, including the surrounding area and not just a tight close-up, so the exact location can be identified later.
- Whatever contract you signed, showing what you paid for and what the funeral home or cemetery was supposed to do.
- Any records you can get informally from the cemetery or funeral home, like a map of the grave. A legitimate business shouldn’t refuse a reasonable request like that.
If a case can’t be taken on, the goal is still to help give a family some form of closure where possible, even if that just means confirming there wasn’t actually a problem. Kaminsky Law is licensed in Pennsylvania and New Jersey, with working relationships with attorneys in other states cases can be referred to when a situation falls outside that licensing.
Funeral Home and Cemetery Negligence FAQ
What is funeral home negligence?
Funeral home negligence is when a funeral home fails to properly handle a loved one’s remains during the window they’re responsible for, from the time someone passes away through everything leading up to burial or cremation. It covers everything from scheduling mix-ups to much more serious problems like unauthorized cremation or mixed-up remains.
What is cemetery negligence?
Cemetery negligence covers problems with the burial itself and what happens afterward, a responsibility that can span decades, from the moment a grave is purchased until the last person entitled to use it is actually buried there. Common examples include poor recordkeeping, grave space that isn’t actually available, and headstones that don’t get put back correctly.
How can I check whether a funeral home is reputable before I use it?
Search the funeral home and its owners online and on social media, looking at what’s published about them rather than just what they publish themselves. You can also search your county’s court dockets and judgment records to see if they’ve been sued or already lost in court; viewing the list is free, though pulling individual filings costs money.
Does a funeral home have to carry insurance?
No. General liability insurance, covering something like a slip-and-fall, is different from funeral negligence or funeral director’s insurance, which covers mistakes made performing funeral services, and this second type isn’t required by the state. A funeral home can legally operate without it, which can leave a family with no real way to recover even when something goes wrong.
What if I think my loved one’s remains were mixed up?
This is one of the most serious types of funeral home negligence, and it’s harder to catch with closed-casket services or cremation, since family members never see the remains directly. With cremated remains specifically, there’s no DNA test available afterward. A death certificate will state whether an autopsy was performed, which can be one useful way to check a specific discrepancy.
Who has to approve a cremation?
Generally in Pennsylvania, cremation requires permission from the next of kin, though whether that means all next of kin or a majority depends on the specific situation. This gets complicated quickly, especially when siblings disagree, so see our full breakdown of next-of-kin consent rules for cremation and disinterment for the details.
What should I do if I suspect a mistake was made?
Document everything you can: keep communications in writing where possible, take pictures that include the surrounding area if something looks wrong at a grave, and gather your contract and any records the funeral home or cemetery has. Then talk to an attorney, since these situations are fact specific and a lawyer can help you figure out whether something was actually done wrong.
Talk to Kaminsky Law
Funeral home and cemetery negligence cases are fact specific, and the earlier you document what happened, the stronger your position. If you suspect something went wrong with a loved one’s remains or burial, contact Kaminsky Law to talk through your situation.
Related Reading
- Cemetery Negligence: What Size Should My Burial Space Be?
- Ask for Burial Space Probing to Confirm That Your Grave Can Be Used at Your Time of Need
- How Long Can Human Remains Be Stored Before Being Buried?
- Improperly Stored Human Remains Recovered From a Colorado Funeral Home
This article is general information based on a recorded discussion. It is not legal advice and does not create an attorney client relationship. Every case is different. Prior results do not guarantee a similar outcome. For advice about your situation, contact Kaminsky Law directly.
