The author discussed in part 1 of this column the problems that arise concerning the ownership and use of multiple unused cemetery spaces after the original owners die without providing for future ownership and use when there is no applicable state statutory law. The discussion will continue in this column with a review of the state law in Illinois on the subject.

            Some states have dealt with the problems discussed in Part 1 of this column with legislation. In Illinois, for example, the state legislature enacted Section 765 ILCS 835/16 of the Cemetery Protection Act that went into effect on January 1, 2002 allowing cemeteries to minimize the problems by obtaining an Heirship Affidavit. The law provides that if a cemetery authority receives an Heirship Affidavit from an executor, personal representative, surviving spouse or heir of the deceased owner of multiple interment rights, the cemetery can rely on the information in the affidavit to determine the use of the unused interment rights without any liability. The law provides that an affidavit would only be required if an owner had not specifically given the unused interment rights to heirs, provided a cemetery interment rights form to the cemetery or had a specific bequest in a will.

  The law specifically states that when the owner of multiple interments rights dies any unused spaces not previously designated can only be transferred by a specific bequest of those spaces in a will. If there is no specific bequest or a lifetime transfer then the ownership of any unused spaces may be determined by a cemetery authority in accordance with the standard affidavit of ownership and the right to use any spaces will be determined in the order of death of the persons listed on that standard affidavit. Section 16 also provides that if all the living heirs are in agreement they can sell the unused interment rights and if two thirds of the living heirs agree a spouse of an heir may be allowed to use an interment right.

  While the problems have been minimized in Illinois by the enactment of the law, problems can still occur if the owner of multiple interment rights dies without making a specific bequest in lifetime or by will or providing the cemetery with a written designation and the cemetery does not obtain an Heirship Affidavit.

  If the owner does not provide the information, make a bequest or the cemetery does not obtain an Heirship Affidavit, the future right to use the space can get complicated. For example, assume that “A” and “B”, husband and wife, purchase five (5) interment rights in a cemetery. “A” and “B”, have three (3) children, “C”, “D”, and “E”. The cemetery does not have any rules and regulations on the subject of ownership rights after the original owner dies. “A” dies and uses one of the interment rights. “A” made no provision for the interment rights in his will or during lifetime. “B” dies and is interred in a space and she made no provision for the interment rights in her will or during lifetime. “C”, “D”, and “E” now would be considered as owners of the remaining three (3) interment rights as tenants in common. When “C”, “D”, and “E” die, they each can use one of the other interment rights. If “C” marries and then dies, one of the remaining interment rights can be used by “C” and “C”’s rights in the other two (2) interment rights would terminate. However, if “C” is interred elsewhere, then “C”’s interest as a tenant in common in the three (3) remaining interment rights will be owned by “C”’s spouse and any children they may have. It is at this point that the ownership can get even more complicated and there could be many possible claims for the remaining spaces.

  Another factor that confuses the ownership is Dissolution of the Marriage without providing in the agreement for a transfer of any interment rights held jointly by the spouses. In the event that ownership is held in joint tenancy, both parties will have an equal interest until one dies and then the surviving party will own any remaining unused interment rights. If there are problems after a divorce between the former spouses it is not uncommon for a cemetery to be involved in a dispute on the use of the unused interment rights.

  A lot of the confusion in this area has been caused because many attorneys who specialize in the estate planning and dissolution of marriage area are not familiar with the special requirements for the transfer of cemetery property. The author believes it would be helpful for subscribers to alert local attorneys about the law in their state and suggest to the attorney they deal with the subject when preparing wills and trusts for clients.

  This article is for the information of subscribers and does not constitute legal advice about this subject. All subscribers should accordingly consult with their own attorney to make sure they are in compliance with the laws in their state.