Appellant Helen Swidzinski is the sister of the decedent, Joseph Schultz, and the executrix of his estate. Joseph Schultz is survived by his wife, appellee Eugenia Schultz, his son, appellee Kenneth Schultz, and other children who are not parties to this action. Joseph Schultz’s only assets were real estate owned jointly with his wife and a bank *424 account held jointly with Kenneth. In his will, he directed that his funeral expenses be paid out of the assets of his estate; however, his estate is insolvent.
Appellant, as executrix of the estate, sued appellees in assumpsit to recover the testator’s funeral expenses. The appellees demurred to the complaint. The trial court sustained their demurrers, and stated that neither a widow nor a surviving child is liable for the funeral expenses of a husband or parent, where the estate is insolvent.
Appellant presents two questions, which we will answer together:
1) If a husband is presumed to be primarily liable for the funeral expenses of his deceased spouse, does the same presumption of liability apply to make the wife liable for the husband’s funeral expenses?
2) Is the obligation of a spouse to pay funeral expenses of his/her deceased spouse relieved totally by language in the decedent’s Will which states that funeral expenses are to be paid out of the estate of the decedent whenever the decedent’s estate is insolvent? 1
The scope of review of an appellate court, when confronted with a challenge to a demurrer, is limited.
Mahoney v. Furches,
The Probate, Estates and Fiduciaries Code provides that, if the applicable assets of an estate are insufficient, the decedent’s personal representative shall pay, in order,
*425
the estate’s administration costs, the family exemption and the decedent’s funeral and burial expenses. 20 Pa.C.S. § 3392. A testator may provide in his will for his burial.
See Pettigrew v. Pettigrew,
Historically, a husband was responsible for his family’s necessities, including funeral expenses.
See Waesch Estate,
The enactment of Married Women’s statutes in many states recognized the separate estate of a wife and began the erosion of the common-law rule.
See Bair v. Robinson,
108 Pa. (12 Out.) 247,
aff'd. per curiam
However, the husband remained primarily responsible for the family’s necessities, so that a wife whose husband had deserted the family could use her estate to provide those necessities, and then assert a quasi-contractual right against her husband to recover her expenditures.
Adler v. Adler,
Section 116 was enacted, and these decisions rendered before the adoption of our state’s equal rights amendment, which provides: “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const, art. I, § 28. The amendment was intended to equalize the benefits
and
the burdens between the sexes, so that gender alone could no longer be an exclusive method of classification.
DiFlorido v. DiFlorido,
Other states have similarly modified or voided the common-law rule, under married women’s statutes or equal rights amendments or on equal protection or public policy grounds.
See Credit Bureau of Santa Monica Bay District, Inc. v. Terranova,
The specific question before us is whether a widow must, pursuant to the equal rights amendment, be presumed liable to the executor of her husband’s estate for his funeral expenses. By statute, appellee Eugenia Schultz would be liable for those expenses if they had been incurred by a public body or agency. 62 P.S. § 1974 (“Property of persons liable for expenses incurred for support and assistance”). Likewise, she could be liable, under the aforementioned Section 116, in a suit by a private provider of burial *428 services. Here, however, recovery is sought by the executrix of the indigent’s estate. We have found no Pennsylvania appellate decision holding a widow, under common law or the equal rights amendment, responsible to the executor of her husband’s estate for his interment costs. 2
Our sister state, Ohio, has imposed a duty upon widows to ensure payment of their husband’s funeral expenses. In
Charles Melbourne & Sons, Inc. v. Jesset,
In light of these authorities, we hold that, where a deceased husband’s estate is insufficient to pay his funeral expenses, those expenses, to the extent of the insufficiency, shall be charged to his surviving wife, as her share in the burdens arising out of the marital relationship. This rule is consistent with article I, Section 28, and acknowledges modern economic realities, like those presented in the instant case, in which the surviving wife’s assets may exceed those of her husband’s estate.
Accordingly, appellant’s complaint, as against appellee Eugenia Schultz, did not so clearly fail to state a cause of action as to justify sustaining a demurrer to that complaint. The order of the trial court, insofar as it sustained appellee Eugenia Schultz’s demurrer, is reversed.
Reversed in part; affirmed in part. Jurisdiction is relinquished.
Notes
. Appellant does not now question the decedent’s child's responsibility for his father’s burial costs. This issue is therefore waived. Pa.R. App.P. 2116;
Rago v. Nace,
. We note that
Hetrick v. Hartman (No. 1),
80 D. & C. 342 (1951), required a widow to pay for her husband’s burial.
See also Fox v. Gordon,