Before the guaranteed preneed contract, funeral directors accepted pre-payment on funeral arrangements as an accommodation to their families. Funds were typically placed in a joint account or POD account at the local bank. As this practice became more common, “preneed’ laws were passed to establish requirements regarding the deposit and withdraw of funds. These laws were fairly simple, and some can still be found in many states’ preneed laws as a separate section within the more complex provisions intended for the guaranteed contract.

The guaranteed funeral contract was created about 50 years ago, and preneed took on a predatory characteristic. Promoted primarily by third party preneed programs, the guaranteed funeral contract became a tool for the funeral home that sought to compete with the more established funeral home across town. To overcome the ‘heritage’ established over years of service to a community, a funeral home offered the guaranteed contract to families to reduce expense and emotional distress. 

The third party preneed programs introduced concepts that early preneed laws did not contemplate: master trusts, diversified investments, commissions and grantor tax treatment. Over time, preneed was defined by the guaranteed contract, and the transaction proved very divisive for the funeral industry. A majority of funeral directors felt preneed was harmful to the profession and sought to deter the transaction. Realizing that this form of preneed was dependent upon salesmen, the trusting requirement became a pivotal issue. (Investment restrictions became another.)

With regard to trusting, preneed sellers took the position that the transaction represented a sale of goods and services and the trusting requirement should be set to cover the costs of providing the contracted goods and services. Many funeral directors countered that preneed was an accommodation and that joint account/POD funding requirements should apply to master trusts as well. Funeral directors adverse to preneed understood that if all consumer payments had to be trusted, preneed sellers would be deprived the revenue needed to compensate salesmen. Legislative battles were waged from state to state during the 1970s and 1980s (at a time when insurance funding did not play a major factor). The result was a mixed bag of state laws that vary greatly as to preneed trusting requirements. 

Generally, the 100% trusting issue surfaces in states such as Missouri, Nevada and Texas when consumer advocates pushed reform by seeking increased trusting requirements. However, the issue took on a different light recently when legislation was introduced in Tennessee to reduce its trusting requirement from 100% to 90%. While the bill eventually failed, the Tennessee Funeral Directors Association has good reason for pursuing the change even in light of the NPS failure.

NPS’ climb to become the nation’s largest third party preneed seller was fueled to a great extent by Missouri preneed sales. Missouri’s law allowed NPS to keep the first 20% of the consumer’s payments, and to withdraw income earned by the trust. Consequently, the NPS failure will lead to a call for Missouri to raise its trusting to 100%. Consumer advocates are recommending that Missouri legislators use New York’s preneed law as a guideline. New York not only requires 100% trusting, it also prohibits insurance funded preneed. While these restrictions have worked to the benefit of New York’s consumers and funeral directors, it is too late to implement such restrictions in Missouri (and the other states affected by NPS).

The New York Funeral Directors Association has an excellent record with consumers, and provides innovative programs to both consumers and funeral directors.   The Association’s preneed master trust provides crucial funding for those programs and services. While the state’s size would be sufficient to guarantee a large master trust, the Association also benefits from a legal environment that precludes competition from insurance companies and most outside third party sellers. (It should also be noted that the NYFDA master trust, like so many other state association master trusts, is also a third party preneed seller.) 

Through services provided to its master trust, the NYFDA generates revenues that underwrite educational materials, contracts, marketing, legal expenses and individual account administration. As the primary obligor of its preneed contracts, the association is also in a position of authority to its funeral homes.   The freedom from meaningful competition has allowed the NYFDA to make the consumer and compliance its top priorities. Funeral homes that do not agree with the Association’s policies have few preneed alternatives. In a sense, restraint of trade has worked well for the New York consumer. 

While preneed will always have its detractors, a majority of funeral directors now understand that preneed is more than an accommodation. However, the expense of establishing a preneed program is too great for many funeral homes. Consequently, the state master trust provides the necessary economies of scale to make preneed affordable for the smallest establishments. But, establishing a New York style preneed program requires commitment, time and resources. Without a substantive trust to fund program features, state master trusts must look to current sales for revenues to underwrite education, contracts, compliance, administration, and taxes. But as the Tennessee Funeral Directors Association found out a few weeks ago, it is very difficult to overcome the point of view that preneed is an accommodation and that 100% trusting constitutes a ‘good’ preneed law.

Beyond the 100% trusting requirement, the NYFDA is the only association that does not also have to contend with insurance company competitors. Even though insurance provides the consumer an important alternative to trust funded contracts, this competition impacts an association’s ability to effect policies that may be unpopular with some funeral directors.   If the cost of participation in the master trust must be borne in part by the member funeral homes, some mechanism must be afforded the funeral home to recover those costs when the contract is canceled or transferred to a non-member funeral home. This may be a consideration in the pending Ohio legislation. 

It is unfair to compare the New York master trust to those in states such as Missouri and Iowa. Missouri’s state association had to compete with 3 preneed sellers and several insurance companies. As a consequence, the MFDEA cannot dictate issues to its members as the NYFDA can. Any attempt to implement New York styled restrictions in states such as Missouri will likely be challenged by insurance companies and proactive preneed funeral homes to the FTC as unreasonable restraints of trade. 

Clearly the 1980’s argument advanced by preneed sellers about trusting has been proven wrong by the NPS failure. It is not enough to simply trust that amount needed to cover the ‘cost’ of the prearranged funeral.   Rather, legislators must find a way to protect consumers’ interests while providing the death care industry the means to pay the costs of a preneed program that provides education, performance, compliance and safety.