‘Til Death Do Us Part Redux: Recognition of Same-Sex Marriage in Wisconsin and the
Implications for Wisconsin Funeral Directors
by Michael D. Sharkey, Esq.
Back in early 2014 I published an article in Minnesota Defense magazine entitled ‘Til
Death Do Us Part: How Wisconsin Law Prevents Minnesota Same-Sex Marriage Couples From
Making Burial Or Cremation Decisions When A Partner Dies In Wisconsin. That article
surveyed an issue which had come up for several WFDA members - what happens when a
spouse in a legally contracted same-sex marriage (e.g. Minnesota or any state which recognizes
same-sex marriage) dies in Wisconsin and the legal issues under Wisconsin and federal law that
the funeral director must be cognizant of. Many WFDA members received a copy of that article
at the 2014 WFDA Convention in Middleton, WI in June. After the recent legal events involving
the Federal District Court - Western District of Wisconsin, the U.S. Court of Appeals for the
Seventh Circuit, and the U.S. Supreme Court it is time to redux - “to revisit”- that article.
A Complete, and Swift, Change in the Law
As you are almost certainly aware, in June of this year Judge Barbara Crabb of the
Federal District Court - Western District of Wisconsin struck down Wisconsin’s ban on samesex marriage in the case of Wolf v. Walker. Judge Crabb then issued a stay of her own Order so
that the appeals process could work its way through the appellate court system. In September the
U.S. Court of Appeals for the Seventh Circuit upheld the District Court’s decision in Wolf v.
Walker but issued its own stay of the decision so that Wisconsin (along with Indiana and Illinois)
could appeal to the U.S. Supreme Court. On Oct. 6, 2014 the U.S. Supreme Court denied review
of the Seventh Circuit’s decision which means that the decision of the Seventh Circuit stands.
The Seventh Circuit and Judge Crabb both lifted their stays the next day.
Thus, same-sex marriage is now legal in Wisconsin. Governor Scott Walker has
instructed state agencies to recognize same-sex marriages. This includes approximately 500
marriages contracted in June between the time Judge Crabb issued her Order and then placed a
stay on it.
What This Means for Wisconsin Funeral Directors
Wis. Stat. 154.30(2) specifies who has the right and duty to control the final disposition
of human remains. An individual always has the right to control their own disposition (via Wis.
Stat. 154.30(2) subd. 1 and the “Authorization for Final Disposition” contemplated by Wis. Stat.
154.30(8)(a)-(f)). What has changed is merely the definition of the word “spouse.” Assuming
there is no properly executed Authorization for Final Disposition of a decedent, the person with
the paramount right and duty to control the final disposition is the surviving spouse under Wis.
Stat. 154.30(2) subd. 2. Wisconsin, now that it recognizes same-sex marriage, will apply the
term “spouse” to both hetero-sex and same-sex marriages. Thus, funeral directors can now rely
on the signature and directions of a same-sex spouse as if it were of a hetero-sex spouse.
A Caution to Funeral Directors: You Are Not the Marriage Police- Be Careful What You
Ask About
As a litigation attorney with expertise in mortuary law I have always viewed my most
important role as counsel to the WFDA as that of a pro-active risk manager. As these legal
changes have come so swiftly to Wisconsin, I am concerned that some funeral directors may
react in a manner that exposes them to damage to their professional reputation or even results in
litigation. The biggest potential problem that I predict is the funeral director who is not certain
that a same-sex couple was legally married and asking for proof of the same-sex marriage via
marriage license or marriage certificate.
In making arrangements have you ever asked for a marriage license or marriage
certificate from a hetero-sex marriage partner? If not, why would you ask for such from a samesex marriage partner? You are a funeral director, not the marriage police. Don’t put yourself in
a position that makes you the judge and jury of the legality of the marriage. I would hate to see
WFDA members get themselves into a position that results in a civil-rights lawsuit. If you
wouldn’t have asked for documentation of nuptials from a hetero-sex spouse who comes in to
make arrangements I would submit that you should not ask for such from a same-sex spouse
either.
Furthermore, funeral directors rely on the assumed honesty of the families they serve
every day - and same-sex spouses should have the same courtesies extended to them. Wisconsin
law contemplates that a funeral director should be able to rely on the representations of a person
making arrangements:
In the absence of written notice to the contrary from an individual who claims control of the
final disposition because of precedence under the order of priority of individuals specified under sub.
(2)(a), no funeral director, crematory authority, or cemetery authority, who relies in good faith on
instructions concerning the final disposition from another individual who first claims control of the
final disposition but has less precedence under the order of priority of individuals specified in sub.
(2)(a), and who acts or omits to act in accordance with these instructions, is civilly or criminally liable
or may be found guilty of unprofessional conduct for the action or omission.
See Wis. Stat. 154.30(5)(e).
So long as you are taking your instructions from a person who affirmatively represents
themselves as being the legal same-sex spouse and you have no knowledge to the contrary then a
funeral director acting in good faith can expect to be generally protected by this particular law.
Conclusion
The recent rapid changes in Wisconsin marital law should be viewed as an opportunity
for your business - don’t make them an obstacle that hurts your bottom line or causes damage to
your reputation. As I said when I recently spoke at the WFDA Convention “funeral directors
practice an ancient and noble craft.” These legal changes are easily adapted to by the members
of our profession and can even be made into business opportunities with the right marketing
approach. As of October 2014 marriage is a little different than it used to be in Wisconsin. Yet,
the noble work of Wisconsin’s funeral directors remains the same as it always has - undertaking
the hard work of serving all families with dignity, respect, and professionalism.
Michael D. Sharkey is licensed to practice law in Minnesota and Wisconsin and has been
a licensed funeral director for almost two decades, maintaining funeral director licenses in
Minnesota and Wisconsin. In addition to his litigation practice at Cousineau McGuire, Chartered
in Minneapolis, he represents funeral homes, crematories, cemeteries, families, and funeral
service professionals in all aspects of mortuary law. He is also counsel to the WFDA. He can be
contacted at 952-525-6990 or mds@cousineaulaw.com.
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