Professor Tanya Marsh pieces together oddities and obscurities in funeral and cemetery law

Photo of Wake Forest Law Professor Tanya Marsh inside the Worrell Professional Center

Professor Tanya Marsh is a continuing advocate for legal changes to support the future of the funeral services industry, hosting the first-ever symposium on funeral and cemetery law on Feb. 24, 2017, with the support of the Wake Forest Journal of Law and Policy.

Their eyes were attentive to the tombstones basking in the Nebraska sunlight. Quite nearly hidden among the grasslands were the names of people passed, and with them, the mysterious connections that quietly existed between the viewers and the dead.

Professor Tanya Marsh was in her late teens the first time her footsteps followed her grandmother’s on burial grounds. It was along a path her grandmother knew well, having spent each Memorial Day of her life navigating the graves of distant relatives with flowers in hand.

These trips continued with Marsh cataloguing the names, births and deaths of her grandfather’s people, an endeavor which eventually led her to the county courthouse to piece together her faded family history.

“It was this big puzzle,” Marsh recalls. “They were all farmers, so I was basically trying to reconstruct a family tree from real estate and probate records.”

Only a few years later, Marsh would find herself at law school with intentions to specialize in trust and estate law, an interest that sprouted in cemetery grass and grew from historical threads rooted in the narrative of property law.

A bookish passion for history would continue after graduation and lead Marsh to new legal territories.

“When I was practicing commercial real estate law, I would read old common law cases for fun,” she says. “I started reading cases about cemeteries and it became another giant puzzle I needed to solve.”

To Marsh, there was a legal framework of oddities and obscurities, a roadmap of missing stories that had at once established funeral and cemetery law and remained hidden among statutes and common law doctrines.

Marsh sees the innovative appeal of funeral and cemetery law, noting the antithetical fracture between our own cultural avoidance of death and the law’s faint whisper of memento mori.

“People die every day. Cemeteries are all around us.  If it wasn’t for the deep death-denying trend in our culture, funeral and cemetery law would be something that we would be more concerned about,” she says. “But we just don’t want to talk about death, so as a result this important area of law has been completely neglected for the better part of the 20th century.”

There is a recognition, or rather a unique foresight on Marsh’s part, about the salient impact of current laws on the future of funeral services.

“I think the funeral services industry is nearing crisis,” she says. “Part of the reason that they’re approaching a reckoning point is because people are changing their practices. The rise in the cremation rate and interest in greener practices alone results in people spending less money which means less income for funeral homes.”

Beyond that is the ill-fated combination of an aging funeral director population and high barriers of entry into the funeral services industry, Marsh says.

“The legal and regulatory structure has not changed how much it costs to enter and compete in the funeral industry, so people’s changing preferences are reducing income while the cost of doing business remains unchanged.  Something has to give.”

This is particularly problematic for sparsely populated rural areas fraught with a diminishing demand for funeral services.

“Nobody is paying much attention yet, but I think there is going to be huge pressure on the law when the government sees that funeral homes are closing down because legally imposed obligations mean the economics just don’t work.  The government is going to have to relax those obligations in order to have a place for bodies to go and for services to happen. If not, we’re all going to have bigger problems.”