Legal Rights in Attending a Funeral
Under the First Amendment, individuals have a right to attend funerals without government interference. More importantly, the U.S. Congress has provided for the right to attend funerals without interference by private individuals.
The Federal Funeral Protest Law is codified as 18 U.S.C. § 1388, which was passed into law after the August 21, 2005, funeral of U.S. Marine Matthew A. Snyder, age 20, in Westminster, Maryland. Church members from Kansas protested Snyder’s funeral, as they have done to many military funerals across the country. Snyder’s father filed a lawsuit against the protestors, and that case worked its way through the federal courts. In Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. denied, 130 S. Ct . 54 (2009), the Fourth Circuit Court of Appeals ruled in favor of the protestors. In response, Congress passed the federal Funeral Protest Law, which states that anyone who "intentionally damages or interferes with a funeral, memorial service . . . in a manner that has the effect of unreasonably obstructing or interfering with that person’s right to attend at or to mourn at the funeral or memorial service" violates the statute. See 18 U.S.C. §1388(b)(1). The law also provides enhanced penalties "for an activity described in subsection (a) . . . [i]f such activity occurs during the hour immediately preceding or following the beginning or conclusion of the funeral or memorial service, whichever occurs earlier." See 18 U.S.C. § 1388(b)(2).
Who Can Attend a Funeral?
Who exactly has the legal right to attend a funeral? As a general rule, the following categories of individuals typically have a legal right to attend a funeral held in a public setting: For private gatherings, however, such rights are not necessarily extended to everyone and may vary by jurisdiction. In the case of courts, for example, state law determines who has access to court proceedings and what kind of access they have. While most state laws allow for family members to attend funerals, some jurisdictions have stricter access requirements. For example, some states only extend the right to spouses and parents of the deceased person. Others have more lenient approaches, allowing even friends of deceased persons to attend a funeral in the event of their passing.
Exclusions and Limitations
There are a few possible exceptions or restrictions to the right to attend a funeral. One example is a restraining order against a party. These orders can limit your ability to attend a funeral where the funeral is defined as "protected space." If there is a protective order on file against you, the protected space may include a radius of 100 yards around the property containing the funeral or burial. This means that parties can potentially be ordered to stay away from the funeral home itself as well as the surrounding areas.
Another example is a restraining order resulting from an event not related to a funeral. Such as when a party was recently involved in a domestic dispute and the other party files a protective order. In this instance, a judge may modify that protective order to allow funeral attendance but given the sensitive nature of the matter, a judge may still prohibit attendance.
More common than the above, however, are events unrelated to a domestic dispute or order, such as COVID-19 related restrictions, which can have a significant impact on attendance at a funeral. Although a close family member may not be able to enforce your right to attend a funeral, it is important to note that many of these gatherings have been impacted by COVID-19 related restrictions. Many funeral homes still have occupancy limits in place, including for events such as visitations. Catholic funerals and burials are also subject to current COVID-19 related rules and restrictions.
Resolution of Attendance Disputes
Sometimes, however, the dispute becomes protracted and could end up being presented to a judge for resolution. Either side can file an application with the surrogate’s court (or the Superior Court, Chancery Division, if there are challenges to a will or other estate asset disputes) and request a mediation of the issue. The court will appoint a judge to oversee the mediation, who will meet both parties—in one place or separately at the court—attempting to resolve the disagreement over attendance. At the end of the mediation, the judge typically issues a court order that mandates or restricts attendance at the funeral, based on the particulars of the situation. The arrangements are typically specific; for example, the family can once again choose the time, place and manner of the funeral and visitation, but the judge can indicate that the estranged family member must remain at least 50 feet away at all times, in addition to other arrangements.
Actions if Access Is Granted
If you feel you are being unreasonably prevented from attending a funeral or visiting a deceased loved one before burial, it is advisable to first make sure you are aware of your legal rights. Be polite but be firm in your request that you be afforded the opportunity to attend the funeral or viewing. If the denial continues, then your next step should be to seek assistance from a local law enforcement agency. It is important to have a law enforcement officer make a formal request that you be allowed to attend the funeral or viewing. Any evidence gathered during the officer’s response , and the officer’s own report, can be beneficial in any future appearance before a judge. In the most extreme cases, a lawsuit may be your resort for gaining access to the funeral or visitation. Through a proper court order you can not only obtain the right to attend, but you may also acquire monetary damages from the party that is keeping you from the funeral, as well as reimbursement for legal costs. If you do find yourself in a position to pursue damages, you should consult with a qualified attorney to discuss your individual situation and what possible steps can be taken.
Legal Examples and Precedents
In analyzing the right to attend private events, courts have emphasized the clear societal interest in protecting the rights of individuals to attend funerals. Although these cases most often arise in the context of school-age children, they are instructive in understanding the contours of the right to attend funerals by family members.
In Gendron v. Data General Corp., a case involving a dispute between a parent and the former boyfriend of the parent’s daughter over whether to allow the child to attend her step-father’s funeral, the Massachusetts Supreme Court recognized that a child’s right to attend a parent’s funeral "undoubtedly has some constitutional dimension; it undoubtedly involves a right of free association." The court also noted that a parent’s decision on the issue was subject to review, but only if there "was a grave reason for intervention." Finding no such reason, the court upheld the parent’s decision to deny the child the opportunity to attend the funeral.
Similarly, in In re Marriage of Haller v. Haller, the Washington Supreme Court held that "without clear and compelling reasons to the contrary, children have a protected interest in attending their parents’ funeral." The North Carolina Court of Appeals reached a similar conclusion in State v. Santiago where it held that despite the fact that a relatively small group may be considered the natural objects of a parent’s feelings and affection, if not present to pay respects at his funeral, he is denied fulfillment of a natural desire and it serves to injure, at least to some lesser degree, his emotional well being. Thus, a parent’s choice of who should attend his or her funeral, "should be given great deference and a parent is entitled to rely on the assumption that an event in which they choose to participate will be free from violence." Nevertheless the court also found that funeral directors could not, without statutory authorization, deprive grieving family members of the right to attend funerals.
Conflicts involving the right to attend funerals are often brought into stark relief when a relative shows up uninvited at a funeral and seeks to gain access to the bereaved. This was explicitly recognized by the Washington Court of Appeals in State v. Santiago. There the court found that given the emotional vulnerability of grieving family members, an uninvited presence caused anxiety and fear beyond that expected in most public assemblies. The court also found that such an uninvited presence harbored an implied threat to those whose grief would be unabated.
Some holdings in cases where a person has been prohibited access to a funeral have been more circumspect. As noted in personal accounts from Montana and Washington, access to a funeral may not be denied if it imposes unreasonable obstacles to family members.
Safeguarding Your Interests
If you think there is a conflict between you and someone else (perhaps a frenemy or the current partner of your deceased mother) over his wishes with respect to which funeral home to use and you want to be able to attend the funeral – then you better protect your rights early and often.
This does not mean being antagonistic but it does mean understanding family dynamics and having the problem have its best chance of being resolved as early as possible and in writing. Go see the will and confirm a few very simple facts, i.e., who are the executor and alternate executor, who is the person nominated to take care of tombstone arrangements, who is responsible for maintenance of the grave, etc. – even the last arrangement will likely save you a world of trouble.
Better yet, share a beloved aunt as your source – someone older than the deceased whose word will carry power with the family. Ask that relative to suggest to the family that the funeral home be the choice of the decedent’s executor and if he/she should fall from that role, the next named person in the will. Get the relative’s agreement that in lieu of written documents to the contrary, such arrangements are in place, i.e. the executor has the first choice of funeral home (if he/she should fall the alternate has the second choice and if she/he should die, the alternate has the first choice). Then ask your dear aunt to support the position that as long as there is not a tangible act of malice, no one should influence the executor in any way from his or her choice. This is particularly important wherever there are multiple estranged children – sometimes they can be primary intermeddlers. In most instances , the children want to be buried near or next to each other. If mom or dad has selected a different cemetery, understand it is their choice (life is too short to fight about such things and the funds are their to pay for they choose). Tell your aunt not to speak to anyone who does not carry exactly the same message.
In the alternative and frankly, the more reliable alternative – get a simple written document in place from the deceased setting forth the philosophy of why the executor should have the sole right to choose the funeral home and that the executor has the former’s blessing to tell others about his/her choice and to do all to persuade them to accept that choice. That document should be signed and dated.
I have also seen families with 5-6 young adult children; identify the one that has power of attorney over the parent. This is particularly useful where the parent may still have real capacity (or is deemed not to have lost their capacity). When the time arises, if possible and desired by the elder, get power of attorney assignments from that parent joint with the child (these should go to the children once signed but it is possible to keep the executors power of attorney where needed if that person is not also the executor).
Also determine that the will says (in most circumstances) that burial will occur at the cemetery in City "X," and that the executor shall have the authority to select the cemetery and the manner of burial, as well as the authority to oversee and pay for maintenance of the grave afterward. As to decisions to be made at a later time, get those rights in advance, preferably stating the facts and his/her wishes.