Care for the dead

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Grave maintenance

The dead care is the customary law guaranteed right and also the duty to look after the body to take care of a deceased person.

scope

In the literal sense of the word, it is all care for the dead. Care for the dead includes the right to dispose of the corpse . Related to this is the duty of the funeral to cause the deceased. In a broader sense, criminal charges for disturbing the peace of the dead or disparaging the memory of the deceased are also included.

The right to use the grave comes about through the contract with the administration of a cemetery operator . This can regulate further processes.

In retrospect, re- beds are particularly included during the rest period . Counseling with future relatives can avoid conflicts. In a broader sense, orders for autopsy and exhumation also belong to the care for the dead.

Care for the dead

content

The right to care for the dead includes the right to decide about the body of the deceased, about the type and place of burial and any reburial, as well as arranging for a medical post-mortem examination and the exercise of rights under criminal law , in particular § 167a , § 168 , § 189 StGB .

Will of the deceased

The dominant principle of the right to care for the dead is that the will of the deceased is decisive. Accordingly, this will primarily determines the type and location of the burial. He can withdraw the right to care for the dead from relatives altogether and instruct a third party to do so.

Only if and to the extent that a will of the deceased is not recognizable, the next of kin of the deceased are entitled and obliged to determine the body and to decide on the type of burial and the final resting place according to the principle of customary law.

Post-mortem power of attorney

Insofar as the deceased has issued a corresponding post-mortem power of attorney during his lifetime, the proxy shall have the right to care for the dead. Such a declaration of intent takes precedence over the relatives' right to care for the dead. According to the funeral laws of some federal states, it also establishes a public-law burial obligation. With the funeral provision at a fiduciary undertaker , instructions on death , funeral and care for the dead can be made. These are to be observed by the care worker. Items of care for the dead can be named.

common law

Under customary law , the right to care for the dead belongs to the next of kin , the spouse and his relatives in a straight line. This duty of care for the dead of the immediate family members is based on customary law, in conjunction with Art. 1 Para. 1, Art. 2, Art. 3 and Art. 6 of the Basic Law and in compliance with the public law provisions of the former Reich territory, which are only to be used as a supplement (§ 2 Para 3 of the Reich Cremation Act of May 15, 1934) and the funeral laws of the current federal states of the Federal Republic of Germany. In its decision of December 14, 2011, IV ZR 132/11, the BGH made a distinction between the customary right to care for the dead and the public law burial obligation.

The person entitled to inherit is not responsible for caring for the dead. If the person appointed to care for the dead is also an heir, the right to care for the dead remains in place, even if he refuses to accept the inheritance .

Funeral contract

The caregiver decides on the location and organization of the funeral if the deceased did not make a binding burial order during their lifetime . The caregiver usually signs a contract with the undertaker to conduct the funeral. The contractual relationship with the cemetery administration for the use of the desired grave area is binding for the rest period. He acquires duties and rights to continue caring for the dead. This also includes maintaining post-mortem personal rights . However, this legal term is not fixed in this form in German law. Rather, the customary right to care for the dead in the funeral laws of the German states is linked to the right to use the grave site. After the burial, care for the dead includes the dignified design of the grave site with plants or equipment, the erection of the tombstone and the like.

Cemetery law

The statutes of the cemetery can limit this right. In this respect, the selection of the burial area must already be coordinated with the wishes of the deceased, for example in the case of a Muslim burial . The beneficial owner is a contracting party authorized to decide on the further use of the grave site, such as reburials in other cemeteries. In this respect, he is entitled to observe the peace of the dead. This right of use, based on care for the dead, can be transferred to followers or trustees by means of a power of attorney or a contract change. If the beneficial owner dies, the consequence is usually defined in cemetery laws or local cemetery statutes, up to and including the transfer to the cemetery administration. On the other hand , under contract law , the beneficial owner is ultimately the only person authorized, even if it is recommended to coordinate with other descendants of the deceased.

Burial obligation

Funeral laws of the federal states regulate (in addition) the burial obligation, which is part of the care of the dead. Here, the registered life partners are now largely equated with the spouse. Alternatively, the closest relatives are entitled and obliged. In the funeral laws the order of the persons obliged to be buried is named. This differs in details in the individual federal states. According to state law, the burial of the deceased is primarily a public-law obligation that results from hygiene. The (private legal) persons named in detail are responsible for the execution. If none of the persons named in the law can be found or if they refuse to arrange the burial, the authority named in the law is responsible. According to all burial laws, this is the municipal regulatory office . If the dead are found, the health department can be responsible for the burial. Usually the authority concludes flat-rate contracts with funeral directors.

Legal guardians are not obliged to bury the formerly cared for.

The funeral costs are to be reimbursed primarily by the heirs to the person obliged to be buried, usually the person entitled to care for the dead ( Section 1968 BGB ). Those liable for maintenance are also (subordinately) obliged to pay the funeral costs ( Section 1615 (2), Section 1615m BGB). The same applies to those who caused a death ( § 844 BGB).

If the payer has no means, an application can be made to cover the necessary funeral costs as part of social assistance ( Section 74 SGB ​​XII ). Upon request, it will be checked whether the assumption of costs is unreasonable for the person obliged to be buried for personal and / or financial reasons.

Individual evidence

  1. ↑ Funeral expenses calculator . Retrieved July 22, 2011.
  2. ^ Higher Regional Court Schleswig NJW-RR 1987, 92; Gaedke p. 119; Stockert BtPrax 1996, 203.
  3. ↑ RG, RGZ 100, 171 ff .; RGZ 108, 217 ff .; RGZ 154, 269 ff .; BGH, FamRZ 1978, 15; BGH, FamRZ 1992, 657; KG Berlin, FamRZ 1969, 414 f .; OLG Schleswig, FamRZ 1986, 1093 f .; OLG Frankfurt / Main, NJW-RR 1989, 1159; Karlsruhe Higher Regional Court, MDR 1990, 443 f .; Karlsruhe Higher Regional Court, MDR 2001, 2980; OLG Oldenburg, FamRZ 1990, 1273 f .; OLG Zweibrücken, NJW-RR 1993, 1482 f .; LG Giessen, NJW-RR 1995, 264; AG Wiesbaden, FamRZ 2007, 827 ff.
  4. ↑ BGH FamRZ 1992, 657 = MDR 1992, 588 = NJW-RR 1992, 834; Higher Regional Court Karlsruhe MDR 1990, 443; Higher Regional Court Karlsruhe MDR 2001, 2980; Higher Regional Court of Celle , Az. 22 U 59/90 of January 10, 1991, cited above. in Widmann FamRZ 1992, 759; BayVGH, BayVBl 1976, 310.
  5. ↑ BGH FamRZ 1978, 15; RGZ 154, 269, 270 f.
  6. ↑ u. a. Section 14 (2) BestG Saxony-Anhalt, Section 13 (2) BestG Schl.-Holstein, Section 18 (1) sentence 2 Thuringian BestG.
  7. ↑ § 16 Funeral Act - BestG - of the State of Berlin; Section 20 BestG of the State of Brandenburg; § 10 BestG of the Free and Hanseatic City of Hamburg; Section 13, Paragraph 2 and Section 14, Paragraph 2, Cemetery and Best Act of the State of Hesse; § 8 BestG of the State of Lower Saxony; Section 8 (1) and Section 12 BestG of the State of North Rhine-Westphalia; Section 9 BestG of the State of Rhineland-Palatinate; Section 10 (2) and Section 14 (2) BestG of the State of Saxony-Anhalt; Section 18 (1) BestG of the State of Thuringia.
  8. ↑ BGHZ 67, 238; BGH FamRZ 1978, 15 and FamRZ 1992, 657 = NJW-RR 1992, 982; RGZ 154, 269; Higher Regional Court Zweibrücken FamRZ 1993, 1439 = MDR 1993, 878; Landgericht Bonn FamRZ 1983, 1121 and Rpfleger 1993, 448; District Court Detmold NJW 1958, 265.
  9. ↑ BGH NJW 2012, 1651 = MDR 2012, 352 = DNotZ 2012, 543 = WM 2012, 2013, full text: http://lexetius.com/2011,7142
  10. ↑ RGZ 154, 269/271.
  11. ^ Administrative Court of Leipzig , judgment of July 17, 2007, Az. 6 K 1204/05, FamRZ 2007, 1688; Administrative Court of Hanover ZfF 2000, 63.

Web links

literature

  • Deinert , Jegust, Lichtner, Bisping: death and funeral law . Fachverlag des Bestattungsgewerbes, 5th edition Düsseldorf 2014, ISBN 978-3-936057-43-0 .
  • Gaedke, Diefenbach: Handbook of cemetery and funeral law . 11th edition Heymanns, Cologne 2014, ISBN 978-3-452-27095-5 .
  • Siegfried Platz: Legal Issues in the Event of Death - A Guide for Customer Advice. 4th edition. Stuttgart 2011, ISBN 978-3-09-304989-7 .
  • Markwart Herzog , Norbert Fischer (Ed.): Totenfürsorge. Occupational groups between taboo and fascination. Kohlhammer, Stuttgart 2003, ISBN 3-17-018131-9 ( Irseer Dialoge 9).
  • Brief, Goertz: Funeral law in practice. 2nd edition, Bonn 2016, ISBN 978-3-956610516 .
  • Schenk: Care for the dead - a personal right , Hamburg 2007, ISBN 978-3830029311
  • H.-J. Widmann: The enforcement of funeral orders for the deceased within the framework of family law care for the dead. In: Journal for the entire family law . 1992, p. 759.
  • Walter Zimmermann : Legal issues in the event of a death. Inheritance law, wills, taxes, provisions, funerals. 7th updated and expanded edition. Munich 2015, ISBN 978-3423507790 ( Dtv - Beck-Rechtsberater im dtv 5632).