Burial obligation

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Burial duty is the duty to ensure after the death of a person that their body is properly buried .

Germany

The obligation to have a funeral is regulated in Germany in the relevant funeral laws of the federal states. It is part of the customary law regulated duty of care for the dead . In Germany there is a compulsory burial, and it is also required by law that an examination of the dead takes place and a death report must be made at the registry office . According to the Berlin Administrative Court, there is no obligation to be buried if the corpse is plastinated (VG Berlin, ruling of February 10, 2015, Az. VG 21 L 29.15).

Burial

According to the funeral laws of the federal states, the next fully legally competent relatives of the deceased are obliged to be buried. You are obliged to carry out the inquest , issue of the death certificate to care and funeral (Einsargung, transportation, burial, cemetery and grave choice, burial) within the short statutory deadlines. The heirs or dependents of the deceased have to pay for the costs of the funeral . Basically, there is a cemetery requirement in Germany .

Order of burial

  • Spouse or life partner of a registered civil partnership
  • the children (in some federal states only if they are of legal age)
  • the parents
  • the siblings (in some federal states only if they are of legal age)
  • Partner in a long-term non-marital partnership (only in some federal states)
  • other custodians (e.g. guardian of a deceased minor ; only in Rhineland-Palatinate and Saxony)
  • the grandparents (not in Brandenburg)
  • the grandchildren (in some federal states only if they are of legal age)
  • Heritage (priority over all others, only according to the Rhineland-Palatinate Funeral Act)
  • other relatives up to the 3rd degree , e.g. B. nephews and nieces in Bavaria, Hamburg, Saxony; Uncles and aunts in Hamburg and Saxony, by-laws in Bavaria and Hamburg, fiancés in Hamburg.

There are regional characteristics. To some extent, also based on the fact that the respective persons of age or full legal capacity are, in part, the elders before the young are funeral payment from equal obligor.

Only in the state of Hesse is the facility in which the deceased was housed at the time of death, subordinate to the relatives, also subject to burial. B. Hospital, nursing home.

The funeral obligation is not linked to inheritance law . The heir has no right to determine the manner of burial. Even if the inheritance is rejected or there is no estate, this legal burial obligation still applies. In contrast to this, in Rhineland-Palatinate , the heir takes precedence over family members. A legal guardian ( § 1896 BGB) is not obliged to arrange for the burial of the previous guardian (in Saxony this was clarified a few years ago by changing the relevant administrative regulation).

Substitute performance

If the persons obliged to undertake the burial refuse to undertake the burial, or if there are no persons to be buried, the local public order office can, for reasons of epidemic hygiene, arrange for the burial to be carried out by way of substitute operation and, if necessary, charge the costs to the person required to be buried (or the heirs).

Bearing costs

The obligation to bear the costs of the funeral must be separated from the obligation to pay the burial. This includes the obligation to bear the costs or to reimburse those who arranged the funeral. This can be regulated under public law, in the case of substitute performance by a municipal regulatory office , or under private law, as the heir's obligation to bear the costs according to Section 1968 BGB : "The heir bears the costs of the funeral of the testator ". If there is a community of heirs , this is obliged accordingly.

If the funeral costs cannot be obtained from the heir, the person who was obliged to pay maintenance to the deceased shall bear the costs ( § 1615 , § 1615m BGB). In the event that another person was responsible for the death of the deceased, the heir or the person liable for maintenance are entitled to reclaim the funeral costs from this person ( § 844 BGB). The Road Traffic Act ( § 10 StVG) contains a no-fault special regulation for fatal accidents in road traffic .

Since 2004, health insurances have not paid death grants to cover funeral costs . Since then, they have been taken over by the social welfare agency on application , provided that those who are obliged to do so cannot be expected to bear these costs (Section 74 SGB XII). The legislature has introduced the characteristic of reasonableness instead of the characteristic of need. A large number of social court decisions have been made in relation to this provision, mostly on the extent to which relatives who are liable to pay the costs have to pay for funeral costs if there was no or only negative contact with the deceased or the relatives themselves are penniless. In 2010, funeral costs for 22,651 people were covered by social assistance agencies . That was an increase of 64% in five years.

Selected case law

  • According to § 15 BSHG (now § 74 SGB XII), the person who is obliged to bear the costs is entitled. This can be the heir according to § 1968 BGB or the person liable for maintenance according to § 1615 BGB, but also a relative who arranges the burial due to a public-law burial obligation, if compensation claims against the persons actually obliged to bear the costs cannot be realized due to insufficient performance. (BVerwG, BVerwGE 114, 57)
  • A lack of contact between the deceased and the person obliged to be buried does not release one from the obligation to be buried
    • OVG Lüneburg, decision of July 9, 2002, 8 PA 94/02;
    • VG Koblenz, judgment of June 14, 2005, 6 K 93/05;
    • Judgment of the VGH Mannheim of October 19, 2004, 1 S 681/04;
    • VG Karlsruhe, judgment of September 10, 2001, NJW 2002, 3491.
  • The burial person does not have to bear the costs of the funeral according to general principles of equity if it is unreasonable. For example if the person obliged to be buried was severely mistreated by the deceased and this can be proven (VG Koblenz, judgment 5K 3706 / 03.Ko of June 30, 2004).
  • If a friend bears the costs of the funeral of a welfare recipient for moral reasons, these will not be reimbursed by the social welfare office, as there was no legal obligation (VG Aachen Az .: 2 K 1862/04).
  • The assumption of funeral costs is also available to a legal person, e.g. B. a hospital if it is subject to a funeral due to special state regulations. Such a legal person cannot be expected to bear these costs. (BVerwG, judgment of January 29, 2004 - 5 C 2. 03)
  • The provider of a retirement and nursing home does not have to pay the costs of the funeral of a previous resident if he has not expressly assumed such an obligation in a contract (VG Trier Az .: 2 K 522 / 06.TR).
  • Necessary funeral costs result from the local cemetery statutes (VGH Mannheim, NVwZ 1992, 83). If the local cemetery regulations stipulate a tombstone , its acquisition is permitted to a reasonable extent (VGH Mannheim, FEVS 1992, 380). The furnishing of the mourning hall and the grave with flowers must be modest (OVG Lüneburg, FEVS 33, 251).
  • Grave maintenance costs do not count towards the reimbursable funeral costs
    • Regional Social Court of North Rhine-Westphalia, L 20 B 63/06 SO NZB of September 21, 2006
    • Bayerischer VGH, decision of December 8, 2003, 12 ZB 03.3098
    • BVerwG, judgment of March 24, 1977, Az .: II C 61.73 in connection with BVerwG, judgment of January 17, 1961, Az .: II C 150.59.
  • The OVG Münster (FEVS 42, 27) has spoken out against assuming the costs of transporting a corpse abroad; the OVG Hamburg (NJW 1992, 3118) recognizes them as an exception if no burial according to Islamic customs is possible and customary at the place of death.
  • Fundamentally, the funeral costs may not be lump-sumed by the social welfare agency; the actual reasonable costs are to be assumed. Costs that are absolutely necessary for a funeral and that are essential for religious reasons are reasonable; this does not include costs solely due to death such as an obituary notice, mourning clothing, the funeral feast, thanks or travel expenses. (BSG, August 25, 2011, AZ B 8 SO 20/10 R) However, the costs of the journey can possibly be claimed as help in other life situations . (LSG Lower Saxony-Bremen, June 19, 2008, AZ L 7 AS 613/06)
  • A needy relative may not be denied the assumption of the funeral costs with reference to compensation claims of others if these are legally doubtful; the risk of litigation must not be passed on to relatives. (BSG, BSGE 104, 219)
  • If a funeral home arranges the burial of a deceased without an order because the surviving dependents refuse to arrange the funeral, the company is entitled to reimbursement of the costs incurred from management without an order against the person obliged to be buried under state law. (BGH, judgment of November 17, 2011, AZ III ZR 53/11)
  • If a bank is ordered by a decision of the probate court to reimburse funeral costs to a third party from an estate account, the bank is not entitled to appeal. In the case of small estates in particular, the probate court may be empowered to issue such orders (OLG Rostock 3rd civil senate, decision of October 25, 2012, 3 W 155/12)
  • The social welfare agency may not refuse to cover the funeral costs in a lump sum with the reference that the funeral costs could be paid from the current income over several months if the creditor is actually not willing to such a payment agreement and a loan is not possible due to a lack of creditworthiness . (BSG, judgment of April 4, 2019, AZ B 8 SO 10/18 R)
  • If state law allows miscarriages to be buried at the request of the parents, a corresponding application does not constitute an obligation on the part of the social welfare agency for the resulting funeral costs (LSG North Rhine-Westphalia, judgment of October 14, 2019, AZ L 20 SO 219/16)

Austria

In Austria there is a fundamental obligation to have a funeral. After the examination of the dead and the entry in the death register, the funeral can begin. However, there must be a burial site. The federal states have their own rules, also regarding the deadlines for reporting the dead. There are several types of burial:

Only people who have lived or died in the municipality are buried at municipal cemeteries.

Switzerland

The burial may take place at the earliest 48 hours after the occurrence of death and only after notification to the responsible burial office of the municipality. In Switzerland, burials are cantonal or communal, depending on the canton. In contrast to Germany and Austria, surviving dependents in Switzerland are allowed to take the urn of a deceased person after the cremation.

literature

E-books

  • Axel Ertelt : Death is not planned , e-book, Ancient Mail Verlag, Groß-Gerau, 2013

Web links

Individual evidence

  1. ↑ http://www.lto.de/recht/nachrichten/n/vg-berlin-beschluss-vg21l2915-koerperwelten-museum-ausstellung-genehmigung-bestattungsgesetz/
  2. ↑ Section 13 (3) FBG
  3. ↑ When the public order or social welfare office carries out the burial. Retrieved January 31, 2013.
  4. ↑ Funeral expenses calculator. Retrieved July 22, 2011.
  5. ↑ Federal Statistical Office , Wiesbaden
  6. ↑ Number of social burials increases - no money for the grave. In: SZ , April 25, 2012