A client recently asked my advice about a dispute between two families over the ownership of unused cemetery spaces. The issue was who was entitled to be buried in those spaces. This is not an unusual question for cemeteries 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 themselves 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 cemetery spaces and who has the right to use unused spaces after the original owners pass away. However, in many states requirements are based on court decisions.
Generally the owner of an interment right has an easement in real property to be used solely for interment purposes. 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 members 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 interment 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 interment 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 undivided interest in the property and each of them having an equal right to the use of the property. Generally, unless specifically provided for in a transfer document or a will, there is no right of survivorship in the tenants in common for the interest 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 partition of the interment rights in their favor, thus terminating any further interest by that deceased tenant’s heirs in the remaining 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 terminate 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 interment 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 determine. When the ownership is transferred to the next level or even further, difficult decisions have to be made to determine the ownership and use of the remaining unused 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 Regulations 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 concluded in Part 2 next month.
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.