Opinion No. 71-14

STATE OF SOUTH DAKOTA OFFICE OF THE ATTORNEY GENERAL May 10, 1971 G. E. Bollinger State's Attorney, Sanborn County Woonsocket , South Dakota 57385 OFFICIAL OPINION NO. 71-14 Legal Residency - Funeral Expenses Dear Mr. Bollinger: Receipt is acknowledged of your request for this department to resolve the issue of the payment for the funeral expenses of a decedent's wife under the following factual situation: The lady and her husband were residents of Sanborn County up until 1964. Prior to that time Sanborn County had given some assistance to the family. Sometime during 1964 they removed to Beadle County and since that time Sanborn County has not provided any assistance. Earlier the husband died. During 1970 the surviving spouse died and it is her burial expense that we are concerned about. Sometime after 1965 the lady in question applied for and received OAS benefits as a resident of Beadle County . There seems no dispute that neither the deceased nor Sanborn County were ever served with a notice by Beadle County of a Prevent Notice. The statutes involved are: 28-13-3 - Residence requirement for legal settlement in county.-Every male person and every unmarried female over the age of twenty-one years, who shall have resided in this state one year and in the county ninety days, shall thereby gain a legal settlement in such county. 28-13-13 - Legal settlement not changed by change of residence receiving assistance or relief - Responsibility of original county for relief provided.-Any person who is receiving from any source, public assistance, poor relief or work upon federal works projects or regular or emergency poor relief of any type shall have his legal settlement for purposes in the county from which he has been assigned to and/or received public assistance, poor relief or work upon federal public works or regular or emergency poor relief of any nature, and such person or persons shall not lose such poor relief settlement by moving to or residing in any other county for a period of one year after the cessation of the receiving of such poor relief by himself or members of his family. In the even t any such person or persons shall move to another county, the county in which such person or persons have established poor relief settlement shall be responsible for any poor relief as may be furnished by such other county. 28-17-2. - Funeral expense borne by county of residence or where death occurred.-Whenever any person who is destitute and has no estate shall die within the state, and who has no one legally bound for funeral expenses, the funeral expenses shall then be borne by the county in which the deceased was a resident at time of death, and if no residence can be fixed, then by the county in which death occurred. 27-17-6. - Payment of expenses by county-Reimbursement by county of legal settlement -Conduct of funeral and payment of expenses for deceased veterans.- The necessary and reasonable expenses of burial under this chapter shall be paid by the county treasurer, upon the order of such commissioners; and if the decedent shall have had a settlement in a county in this state different from that in which he died, the county paying such funeral expenses shall be reimbursed by the county in which the decedent had a settlement. When the person so dying shall be an honorably discharged United States soldier, sailor, marine, or aviator, the funeral shall be conducted and expenses paid as provided in chapter 33-19. The precise dates involved are not disclosed, but it does clearly appear that during the year 1964 both husband and wife moved from Sanborn County , their former home, to Beadle County . No residential requirements now obtain to qualify for old age assistance. See Chapter 152, 1970 Session Laws. Prior to their removal, Sanborn County had awarded poor relief to the family which consisted of the husband and wife. The husband departed this life prior to 1965 and in 1965 the surviving wife applied for and was awarded Old Age Assistance in Beadle County . The wife remained in Beadle County , a recipient of Old Age Assistance, until 1970 at which time she died without means to defray the burial expenses. The burial of a deceased person without means necessary to defray funeral expenses is embraced in Chapter 28-17-1 to 28-17-6, especially sections 28-17-2 and 28-17-6 as quoted previously in this opinion. SDCL 28-13-3 (quoted previously in this opinion) fixes the residence of anyone to qualify for poor relief to one year in the state, and ninety days in the county. Under the statute, the wife has clearly qualified for poor relief in Beadle County , unless and only if she may not so qualify under § 28-13-13. It is conceded that no poor relief was accorded to the wife or husband after moving from Sanborn County to Beadle County after January 1,1965 . Sanborn County ceased paying any poor relief during 1964. A controlling question involved here is how are the terms "legal settlement" and "resident" to be construed as used in Chapter 28-17, § 2 and §6, the County Burial Act. In neither sentence are these two terms modified or extended to a person for "a legal settlement for poor relief or "a poor relief settlement." It would, therefore, appear that the County Burial Act should not be extended beyond its terms. The respectable interment accorded in Chapter 28- I 7 separately classified as "county burial" may not logically be by construction interpolated in to "legal settlement for poor relief' or a "poor relief settlement" as those terms are used in SDCL 28-13-13. Under the provisions of Section 28-13-13, a legal settlement for poor relief is extended only and is lost as to the county in which it was first established. Applying the statutory regulations, "such person or persons shall not lose such poor relief settlement by moving to or residing in any other county for a period of one year after the cessation of receiving such poor relief by himself or members of his family." In this case five years elapsed prior to the wife's death, hence removal from the county and the cessation of obtaining poor relief therein, both factors being present, resulted in a change of legal settlement for poor relief on the part of the wife. A legal settlement for poor relief is extended only and is lost as to the county in which it is first established when removal plus cessation of received relief therein occurred. In this case several years had elapsed prior to the wife's death. In this instance the wife moved into Beadle County for five years after Sanborn County ceased to grant any poor relief and she lived in Beadle County thereafter. It, therefore, appears that Beadle County should pay the funeral expenses of the subject wife. This conclusion is confirmed by AGR 1951-52, page 330, as follows: If a person applies for and receives old age assistance in a county, that county is his legal settlement for poor relief purposes. If, for instance, the person moves to another county and continues to receive old age assistance, the legal settlement of that person continues to be the county in which he applied for and received old age assistance. However, if a person moves from the county in which he established legal settlement for poor relief purposes, and ceases to receive old age assistance for a period of one year, and, provided further he has not received a notice to prevent him from gaining legal settlement for a period of one year, he then will gain legal settlement for poor relief purposes in the second county. During the course of the one year, the legal settlement remains in the county in which he applied for and received old age assistance. Respectfully submitted, Gordon Mydland Attorney General