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Page A10 JUNE 2017 FUNERAL HOME & CEMETERY NEWS S ec t i on A
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By Atty. Harvey I. Lapin
Legal
Speak
Harvey I. Lapin, P.C., is a member of the Illinois Bar and Florida Bar. He
is a member of the faculty at the John Marshall Law School in Chicago
and is presently teaching the subject of Tax Exempt Organizations. He is
also associated with Florida-based law firm Sachs, Sax & Caplan, leading
the firm’s Funeral, Cemetery and Cremation Practice Group.
He has written numerous articles on the subject of taxation, funeral
and cemetery law.
The subject discussed in this article and future articles resulted from
the questions from readers. The author is licensed to practice law in
Illinois, Florida and Wisconsin. He has been involved with legal mat-
ters related to the industry in almost every state and can be reached by
phone at 847-334-1983 or by email at .
Ownership of
Cemetery Space
Problems (Part 1)
A client recently asked my advice about a dispute be-
tween two families over the ownership of unused ceme-
tery spaces. The issue was who was entitled to be buried in
those spaces. This is not an unusual question for cemeter-
ies to deal with on a daily basis. It is also a question that
a funeral firm has to be aware of as a wrongful interment
could occur if the deceased does not really have the right
to use a space.
The specific situation was not unusual in the modern
world. A husband and wife purchased 5 spaces, for them-
selves and their children. The wife died and was interred
in one of the spaces. The husband remarried. He died and
was interred in a space adjoining the first wife. The second
wife died a few years later and her remains were cremated.
It was her wish that her cremated remains be interred at
the bottom of the husband’s space. The two families did
not get along and the cemetery was in the middle. The
question: What was the legal requirement?
Some states have specific laws on the ownership of cem-
etery spaces and who has the right to use unused spaces af-
ter the original owners pass away. However, in many states
requirements are based on court decisions.
Generally the owner of an interment right has an ease-
ment in real property to be used solely for interment pur-
poses. The fee title ownership of the underlying property
remains in the entity or person that owns the cemetery. If
someone purchased multiple interment rights, then prior
to any interment, the owner can generally sell or transfer all or
some of the rights to anyone else. The only exception to free
transferability would be a religious or fraternal cemetery that
imposes reasonable restrictions in its rules and regulations.
When an interment of a member of the family occurs, the
situation changes completely. In the absence of designations
in an agreement with the cemetery or a will, the courts will
impose restrictions on future transfers to non-related parties.
These court imposed legal restrictions are based on the policy
that when multiple interment rights are purchased for the use
of a family, then transfers of those rights to non family mem-
bers after the interment of a member of the family must be
made in a clear and specific manner by the owner or owners.
Accordingly, the courts have held that the ownership of inter-
ment rights by the original owner or owners can only transfer
by a specific transfer deed or certificate of ownership during
life or by specifically bequeathing the rights in their will at the
time of death. If there is no specific bequest, then the inter-
ment rights are considered to pass on an intestate basis to the
heirs of the owner or owners. Usually, this will result in any
children owning the interment rights as tenants in common.
If there are no children, then parents or brothers and sisters
could hold ownership of the interment rights as tenants in
common.
Tenants in common are considered to own an equal un-
divided interest in the property and each of them having an
equal right to the use of the property. Generally, unless specif-
ically provided for in a transfer document or a will, there is no
right of survivorship in the tenants in common for the inter-
est of the other tenants in common. The result is that as each
tenant in common dies, their ownership interest passes to his
or her own heirs. However, if the deceased tenant in common
is actually interred, this use would be considered a partial par-
tition of the interment rights in their favor, thus terminating
any further interest by that deceased tenant’s heirs in the re-
maining interment rights.
All of the tenants in common would have an equal right to
use the interment rights for their own use. Accordingly, when
a tenant in common dies, they can be interred in an available
interment right, even if the other tenants in common object
and at that point that tenant’s ownership interest would ter-
minate by that use of part of the interment rights. However,
if one of the owners wanted to use one of the interment rights
for their spouse or a child, they would have to obtain the
consent of the other tenants in common. If there was an
objection from any other tenant in common, the inter-
ment right could not be used for the spouse or child.
The use of the interment right when an original owner
is alive or by the children is usually not difficult to deter-
mine. When the ownership is transferred to the next lev-
el or even further, difficult decisions have to be made to
determine the ownership and use of the remaining un-
used interment rights. Remember when there is a dispute
about ownership of an interment right the best thing for a
cemetery to do is to let all of the parties settle the dispute
by agreement or by providing the cemetery with a court
order. A cemetery should never inter anyone when there is
a dispute about ownership. Also, most of these problems
can be avoided with the enactment of Rules and Regula-
tions that impose requirements on every interment right
owner on a contractual basis in the event that the original
owner or owners do not specifically designate subsequent
owners either in their lifetime or will.
The subject in the column will be continued and con-
cluded in Part 2 next month.
This article is for the information of subscribers and does
not constitute legal advice about this subject. All subscrib-
ers should accordingly consult with their own attorney to
make sure they are in compliance with the laws in their
state.
Over 150 Years at Ruland Funeral Home
survived. Eight plots were placed in the Lakeview Cemetery
in Patchogue for the lost sailors. The Brooklyn Daily Eagle’s
reporter stated it was estimated that over a thousand people
journeyed on the ice across the Great South Bay from Bell-
port to Bay Shore to view the wreck. “The bodies presented a
horrible sight and scores of people, to satisfy their morbid cu-
riosity, went to Ruland’s undertaking rooms to see them.”
Following this tragedy, C. W. Ruland saw the importance
of establishing a state-of-the-art facility and, in 1906 began
construction on a building specifically designed and dedi-
cated to providing funeral services. In 1908, C.W. Ruland
and his sons, Clarence W. and John R., opened their new
funeral home at the corner of Lake Street and North Ocean
Avenue. To quote The Brooklyn Daily Eagle, “Mr. Ruland
can well be called a pioneer in his profession on Long Island
by reason of his leadership in modernism…..Every modern
device known to the profession is found at Ruland’s, and ef-
ficiency, combined with prompt, courteous, honest service,
has been met with a large and merited patronage.”
In 1909, John R. graduated from the Renouard School of
Embalming and gradually took over the daily operations
of the funeral home from his father - eventually John’s
sons, Wallace and George, would join the firm as well.
For 50 years, the family continued serving residents of
Patchogue and the surrounding communities. Through
the 40’s and 50’s, funerals became more elaborate and
many families expressed a desire for larger rooms and
greater parking facilities. In response, Ruland’s broke
ground for a new facility located on a tract of farmland
a mile from the original location. In 1958 the facility
which continues to serve families today was completed.
In the late 1960’s, Vincent Romeo began his employ-
ment with Ruland’s. He purchased the firm from the Ru-
land family in the early 1970’s. In 1978, he added a formal
portico for arriving families and expanded the building
to include two additional chapels highlighted by custom
stained glass windows. Mr. Romeo rapidly became a fixture
in the Patchogue community, serving on the Patchogue-
Medford Board of Education, fostering the Patchogue-
Medford Youth Soccer League and laying the groundwork
for the Nassau-Suffolk Funeral Directors Association.
Mr. Romeo’s sudden and unexpected passing in 1994
thrust his wife Antoinette, and their sons, Christopher,
Vinnie and David, into a more active role in the daily
operation of the firm. Antoinette Romeo computerized