March 6, 1991

David J. Larson
Brule County State's Attorney
P.O. Box 547
Chamberlain, SD 57325-0547

OFFICIAL OPINION NO. 91-09

Payment for indigent funerals

Dear Mr. Larson:

You have requested an official opinion from this office in regard to the following factual situation.

FACTS:

An individual, born and raised in Brule County, spent substantially all of his adult life in Jackson County where he operated a business. When later in life the individual became unable to care for himself and live on his own, he was placed in a nursing home located in Hutchinson County. He died while living in the nursing home.

The survivors of the deceased, an indigent, were unable to accept responsibility for payment of the funeral expenses, and requested a county burial. A local funeral home which provided a funeral for the deceased now seeks payment for the expenses, and has submitted a claim for payment to each of the counties the deceased had contact with. Each county has denied the funeral home's claim on the basis that the decedent was not a resident of the county.

Based on the above facts, you have asked the following question:

QUESTION:

Which of the above counties should be held to bear the funeral expenses of the deceased?

A county's responsibility to provide a county burial for an indigent is established in SDCL ch. 28-17. Under that chapter,

If any person shall die within any county, who shall not have money or means necessary to defray his funeral expenses, and whose relatives or friends are unable or unwilling to defray the same, it shall be the duty of the county commissioners to employ a person to provide for and superintend the burial of such deceased person.

SDCL 28-17-1 (emphasis added); see also SDCL 34-26-16, 34-26-17.

Once a funeral home is employed to provide a funeral for the indigent, payment is made pursuant to the procedure outlined in SDCL 28-17-6, which provides, in part:

The necessary and reasonable expenses of burial under this chapter shall be paid by the county treasurer, upon the order of such commissioners; and if the decedent shall have had an established residency according to 28-13-3 in a county in this state different from that in which he died, the county paying such funeral expenses shall be reimbursed by the county in which the decedent had an established residency.

Based on the plain language of the above statutes, it is apparent that the county in which an indigent dies is initially responsible for paying the necessary and reasonable expenses of a county burial. In this case, the decedent died in a nursing home located within Hutchinson County. It is therefore my opinion that Hutchinson County is responsible for paying all necessary and reasonable expenses incurred by the funeral home.

After paying such expenses, however, Hutchinson County may consider whether the decedent, at the time of his death, was legally a resident of another county in this state; if so, Hutchinson County may seek reimbursement for the funeral expenses from the county of residence. SDCL 28-17-6. As indicated by SDCL 28-17-2, the legal residency of the decedent at the time of his death is the critical factor in determining what county ultimately must bear the costs of the funeral. That statute, in its entirety, explains that:

Whenever any person who is destitute and has no estate shall die within the state, and who has no one legally bound for funeral expenses, and where there is no other source to pay the cost of burial expense, the funeral expenses shall then be borne by the county in which the deceased was a resident at time of death, and if no residence can be fixed, then by the county in which death occurred.

SDCL 28-17-2 (emphasis added). As a general rule, a person does not establish legal residency in a county solely by virtue of becoming and remaining an occupant or patient in a nursing home located in that county. SDCL 28-13-14; see 1981-82 Rep. of Att'y Gen. 89. Rather, SDCL 28-13-3 sets forth several factors that are considered in determining a person's residency for purposes of county poor relief and county burials. If, in fact, the deceased was a resident of a county other than Hutchinson at the time of his death, then the funeral expenses must be borne by that county. SDCL 28-17-2.

Unfortunately, in your opinion request you have not provided sufficient information under SDCL 28-13-3 that would indicate the legal residency of the decedent at the time of his death. In any event, this largely is a question of fact, not law. I am unable, therefore, to render an opinion as to whether Hutchinson County is entitled to reimbursement from some other county for the cost of the funeral.

Respectfully submitted,

MARK BARNETT
ATTORNEY GENERAL

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