06/26/2015

Same Sex Marriage and the Right of Disposition

by Scott Gilligan, OFDA Legal Counsel

SAME SEX MARRIAGE AND THE RIGHT OF DISPOSITION

By

T. Scott Gilligan

OFDA General Counsel

            On June 26, 2015, the United States Supreme Court, by a 5 to 4 decision, ruled that states may not ban same-sex marriages.  With that ruling, same-sex marriage will now be legal in all 50 states, including Ohio and the other 12 states that had not yet recognized same-sex marriage at the time of the Supreme Court’s decision.

            Below, we address some right of disposition questions which may arise for Ohio funeral homes in the coming days:

            (1)            When does the Supreme Court decision take effect?  

                        Immediately. As of June 26, 2015, same-sex marriage is legal in all states.  Therefore, if the funeral home is providing funeral service for a deceased member of a same-sex marriage, the funeral home should take directions from the surviving spouse.  Until Ohio begins to issue marriage licenses to same-sex couples (which will probably begin immediately), a same-sex marriage is only going to come from a couple that was married in one of the 37 states that recognized same-sex marriage prior to June 26, 2015.

            (2)            Should the funeral home require the surviving spouse of a same-sex marriage to produce a marriage certificate?

                        No. The funeral home should treat the surviving spouse of a same-sex marriage in the same way that they treat the surviving spouse of a heterosexual marriage.  Of course, if family members were to raise concerns regarding whether the same-sex couple was actually married, the funeral home would be within its rights in requesting the production of a marriage certificate.   Presumably, the funeral home would make the same request if family members claimed that a heterosexual couple was not married.  However, in the absence of claims by the family, the funeral home would be within its rights in accepting at face value the claim of marriage.

            (3)            Until Ohio issues marriage licenses to same-sex couples, is a funeral home required to recognize same-sex marriage from other states?

                        Yes. That was part of the Supreme Court’s ruling.  Ohio must now recognize the validity of same-sex marriage that occurred in other states.

            (4)            How should the funeral home fill out the death certificate? 

                        The funeral home will fill out the death certificate just like it does with a heterosexual married couple.  The surviving spouse would be listed as the spouse on the death certificate.

            (5)            Will there be any way for family members of the decedent to override the direction of a same-sex spouse under Ohio’s right of disposition law?

                        Under Ohio’s right of disposition law, the decedent may appoint a representative during his or her lifetime to control his or her funeral and disposition arrangements.   That representative has priority over the surviving spouse. Therefore, if an individual in a same-sex marriage appoints a representative during his or her lifetime, that representative would supersede the surviving spouse of the same-sex marriage.  But, unless a representative has been appointed, the surviving spouse of the same-sex marriage will have the right of disposition. 

                        Of course, just like a surviving spouse of a heterosexual marriage, the surviving spouse of a same-sex marriage will forfeit his or her right of disposition if they fail to make funeral arrangements within two days of being notified of the death, if they cannot be located after a reasonable effort, if they are found to be in an estranged relationship by a probate court, or if one of the spouses filed for divorce prior to the death. 

            (6)            Are surviving spouses of same-sex marriages responsible for the funeral bill? 

                        Yes.  In Ohio, a surviving spouse is legally responsible for the payment of the funeral bill for the deceased spouse.  This responsibility would now extend to spouses of same-sex marriages just like it does with spouses of heterosexual marriages.

            Any OFDA members with questions regarding this issue may contact Scott Gilligan at 513-871-6332.