NADINE ALLEN, Judge.

This matter came on for trial on September 3, 1993. Based upon the evidence adduced at trial, this court finds judgment for defendant.

Statement of Facts

The plaintiff, J.C. Battle Sons Funeral Home, Inc., sued the decedent's surviving spouse, defendant Toni Chambers, for burial arrangements and services it provided. Defendant Chambers is the surviving spouse of the decedent. There is no written contract. Plaintiff submitted a bill totalling $5,270.03 to defendant, after the funeral. The unpaid bill for said services is $3,940. The decedent died intestate and the estate of decedent is insolvent.

The defendant's brother-in-law contacted plaintiff, based upon family friendship, and orally agreed to pay for the funeral expenses. Plaintiff stated that decedent was a "friend" and plaintiff would provide whatever the brother-in-law wanted. In a separate meeting with plaintiff, defendant agreed to pay a maximum of $1,000 for the funeral. Defendant did pay $1,000 to plaintiff for burial. Defendant's brother-in-law paid $410 of the original bill. Plaintiff has received a total of $1,410 for the burial of the decedent.

The cost of burial caskets range in price from $600 to $4,000. The decedent was buried in a $3,945 casket selected by defendant's brother-in-law.

Plaintiff claims that defendant is liable for the funeral expenses because, as the surviving spouse, she is under a statutory duty to bury her deceased husband, pursuant to R.C. 3103.03, which states in pertinent part, as follows:

"(A) Each married person must support himself or herself and his or her spouse out of his or her property or by his or her labor. If a married person is unable to do so, the spouse of the married person must assist in the support so far as the spouse is able. * * *

"* * *

"(E) * * * This division does not preclude a surviving spouse from assuming by contract the obligation to pay for the funeral expenses of the deceased spouse."

Defendant Chambers refuses to pay the funeral expenses, claiming that she told plaintiff that she could not afford to pay more than $1,000 for the funeral, and that the brother-in-law is liable for the unpaid balance. Defendant claims that the lavish funeral arranged by plaintiff and her brother-in-law was beyond what was "necessary" and was unreasonable. She contends that a decent burial could have been provided for the $1,410 plaintiff has received.

Discussion of Law

The facts herein present several issues to be resolved. One is whether the brother-in-law can contractually obligate defendant. The other issue is what constitutes "necessary" funeral expenses. The third issue is whether defendant assumed to pay for all of the funeral expenses, by contract, pursuant to R.C. 3103.03(E).

This latter issue is easily resolved by the undisputed facts. Clearly, defendant did not assume to pay for the expenses ex post facto, nor did defendant specifically contract to provide for the funeral expenses. In fact, defendant emphatically maintains that she could not afford more than $1,000 for the burial and she assumed the in-laws were liable for anything beyond her ability to pay. Thus, the defendant is not liable by operation of R.C. 3103.03(E) herein.

Therefore, any recovery to plaintiff must derive from the operation of R.C. 3103.03(A). In Davis-Turner Funeral Home, Inc. v. Chaney (1991), 61 Ohio Misc.2d 82, 573 N.E.2d 1242, the court held that the son was liable on the contract into which he entered for the burial of his father. The same case held that the surviving spouse was liable to the son for indemnification, since funeral expenses are a necessity. The facts of the case sub judice are similar, even though plaintiff did not sue the brother-in-law. Clearly, if sued, the brother-in-law would have been liable for the funeral arrangements negotiated by himself and plaintiff. Davis-Turner further states that the necessity of the funeral expenses creates an implied contract, and that plaintiff is entitled to recovery from defendant on that basis. This court agrees that plaintiff herein would be entitled to recovery from defendant on an implied contract, provided that the expenses were "necessary."

The case at bar raises the threshold query of what constitutes necessary funeral expenses. For guidance, this court reviewed several cases of precedent in Ohio, including Davis-Turner Funeral Home, Inc. v. Chaney, supra, and Busse Borgmann Co. v. Muse (1991), 62 Ohio Misc.2d 60, 590 N.E.2d 913, Hamilton County Municipal Court, which held that children are liable to funeral homes on an implied contractual basis.

The common denominator of these cases is that the surviving spouses's duty to provide a decent burial constitutes a necessity under R.C. 3103.03. In both Davis-Turner and Busse Borgmann Co., the courts assumed that the funeral expenses were in fact reasonable and, therefore, were necessary. The case at bar is distinguishable from these cases because "reasonableness" of the expenses is at issue.

It is this court's conclusion that a determination of the reasonableness of the funeral expenses is a prerequisite for imposing liability upon a surviving spouse for necessities contracted for by another. Neither the statute nor the case law states that the defendant is liable for any and all funeral expenses. The cases create the theory that the surviving spouse is only obligated to provide a decent burial, at a reasonable expense. What is reasonable is to be determined on a case-by-case basis. The statute clearly states that a surviving spouse "must assist in the support so far as the spouse is able." R.C. 3103.03(A). The determination of that ability is within the sound discretion of the trial court. Ohio State Univ. Hosp. v. Kinkaid (1990), 48 Ohio St.3d 78, 549 N.E.2d 517.

In the instant case, the defendant did not agree to provide a lavish, top-of-the-line casket for the funeral because she was not financially able to do so. The defendant did assist to the extent of her ability to do so by paying $1,000. In fact, it was the plaintiff who insisted upon furnishing a $3,945 casket for its deceased "friend," even though a $600 casket could have been used. Plaintiff could have provided a decent burial for much less than the cost herein. Clearly, the brother-in-law's contract obligates defendant to pay for necessary funeral expenses, but only to the extent that they are reasonable.

Herein, this court finds that the funeral expenses were unreasonable, under the circumstances, and unnecessary.

Conclusion

A surviving spouse has an implied contractual obligation to pay for necessary funeral expenses arranged by a third party, only to the extend that they are reasonable. The test in determining reasonableness is set forth in R.C. 3103.03(A), which states the surviving spouse must assist according to his or her ability to do so. Therefore, defendant has complied with the statutory obligation set forth in R.C. 3103.03(A), and plaintiff is not entitled to recover the unpaid balance from defendant.

Judgment for defendant.