Is a separated wife still responsible for funeral?

Grim asked...

My brother died two months ago, leaving no estate and no insurance. He was still married but living apart. Would his wife be legally responsible for the funeral costs?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

This question sounds simple, but it raises a number of issues that may complicate its answer.

Before providing services, most funeral homes will demand some assurance that they will be paid. For example, most will require the person who arranges the funeral to provide a "responsible party" who will be on the hook for paying the expenses upfront or within a specified period of time. So if a funeral home was involved in the services, first check to see whether someone has become legally obligated to pay under the terms of a contract.

Otherwise, funeral costs are typically paid out of an estate"”that is, the money and property the deceased person owned at death. While your brother may not have owned sizable bank or stock accounts, it would be unusual not to own any property of value. If no one else is legally obligated to pay, the funeral director or crematory operator may attempt to claim some portion of the value of the property he owned, but they would have to have their claim evaluated by a probate court, and might have to get in line behind other people or agencies who may take precedence, such as the IRS.

Finally, there are laws in some states that make a spouse at least partially responsible for funeral expenses in some cases. It can be difficult to find these laws, though, as they go by various names. The best place to start a search for them may be to contact the state department of consumer affairs. If your brother and his wife attained a legal separation"”that is, they filed for one in court"”then she would likely be exempt from paying under any such law.