Burial Laws

Unlike laws regulating the insurance industry, the legal profession, or matters of inheritance, burial laws found in the United States do not possess a common theme or thread of statutory logic. Each is different, and many are silent where others are detailed.

The burial laws first adopted in the United States reflect English common law and/or church rules and regulations governing church cemeteries in Great Britain and those for other European societies. Following such common law doctrine and based on practical experience, these early laws adopted by the various states addressed what needs may have been perceived. As burial laws evolved, state legislatures were, in most cases, reacting to specific and unique issues surrounding municipal, religious, and fraternal cemeteries found within the state. Model statutes to consider during the previous century were nearly nonexistent; thus hybrid legislation resulted.

Today, burial law can be as brief as a passing mention within several sections of state code or as highly detailed as to fill entire chapters of law in which state agencies (e.g., state cemetery boards) are created to regulate such laws. The pattern appears to be no pattern. Other than national cemeteries (veterans' cemeteries) and specific protections offered to Native American and historical burial grounds, very little exists in federal statute regulating cemeteries and burial practices.

The U.S. Geological Survey estimates there could be as many as 200,000 burial grounds in the United States; statistically, there are at least 100,000. The U.S. Geological Survey's estimate includes any and all burial grounds (sites), even those where just one or two burials may exist, for example, a sealed mine shaft with known accident victims who were never removed. Today's burial laws govern cemeteries of record, both active and inactive.

There are four major subjects found within today's burial laws: (1) cemetery land and issues related to such, (2) individual and family burial [Page 128]rights and the nature thereof, (3) business regulation and exemption from such (i.e., religious organizations), and (4) jurisdictional authorities (i.e., coroners, taxing districts, etc.). With the evolution of the so-called modern cemetery and that of “before need (pre-need)” sales practices, new laws have been developed to protect trust funds and the rights of both the modern cemetery and its consumers.

Cemetery Land Law

Most burial law today recognizes the unique nature of cemetery land as it relates to land use and property taxes. Burial land often is exempt from property taxes and various types of regulatory fees. “Dedication” of cemetery lands for cemetery purposes only protects the continued use of cemetery land from generation to generation. Dedication in most cases is filed with a county or borough recording authority, and to remove such dedication requires extraordinary actions. In many cases, courts of competent jurisdiction are required to concur with dedication removals. Burial laws appear to recognize that changing societal values and needs must be balanced with the established values expressed at the time of dedication. Dedication in many cases can represent promises to consumers that might take a century to fulfill. For example, 100 acres of land is dedicated in 1890 for cemetery purposes. The cemetery in this case is cared for with proceeds from an endowment care fund that derives its capital from deposits made as individual graves are sold. To “fully fund” such an endowment, the fund expects all available space within the dedication to be eventually sold. But later, the operators of the cemetery see greater revenue opportunities in selling unsold grave space for a housing development, a prospect never envisioned 118 years earlier. Burial law that protects dedicated cemetery land addresses the fact that the unfilled sales volume will undercut fulfillment of the care fund, thus damaging society's promises made decades ago to now deceased individuals. Enter the courts or a state agency for competent jurisdiction pursuant to dedication removal procedures.

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