Cemetery Plots, Estate Planning & Administration

When visiting a cemetery, besides hopefully seeing beautifully manicured lawns, you often see family members who are buried alongside one another. These are family plots with multiple internment spaces. How are family cemetery plots owned and transferred, and who can be interred in an available space?

Title to a cemetery plot is either in the form of a deed to real property or a certificate of ownership issued by the cemetery.

In California, the owner and also the owner’s spouse each have a vested right of internment if when they were married there were at least two available internment spaces. The same rule applies to any subsequent spouses. If the cemetery plot is purchased by two or more owners as joint tenants, each joint tenant has a vested right of internment. Subsequent owners take subject to vested rights of internment.
Thus, even if a married owner sells the cemetery plot, the new owner takes subject to the spouse’s vested right of internment. Exceptions exist if the owner’s spouse also joined in or consented to the sale, waived his or her internment right, was divested of the right in a divorce decree from the owner of the family plot, or if the spouse died and is buried elsewhere.

Unused internment spaces in a family plot can also be used to inter the remains of the owner’s deceased parents and deceased children. Although parents and children do not have vested right, unlike the owner and the owner’s surviving spouse, they may be interred based on their order of death and subject to availability of internment spaces. If no parent or child survives, the right of interment goes in the order of death first, to the spouse of any child of the record owner and second, in the order of death to the next heirs at law of the owner or the spouse of any heir at law.

Prior to 2002, if the remains of the deceased owner or his or her family were buried in a family cemetery plot and additional internment spaces remained unoccupied then the entire family plot became inalienable after the owner died.

Any surviving family member(s) who became the owner(s) of the family plot could neither transfer nor sell the inherited plot. The California Legislature considered this automatic restraint on alienation –absent of any expressed intent by the deceased owner – outdated law. Nowadays, with families no longer remaining in the same county, the surviving family members who inherit the plot often want to sell the unused burial places.
Section 8650 of California Health and Safety Code as amended provides that, “any unoccupied portions of a family plot that became inalienable pursuant to this section as it read on December 31, 2001, shall no longer be inalienable and shall pass according to the laws of intestate succession … .”

If the deceased owner did not specifically devise (gift) the family plot in his or her will to someone and did not transfer the family plot to the cemetery in order to make the family plot inalienable, the deceased owner’s heirs (often a surviving spouse and/or surviving children) inherit the plot. The heirs just provide the cemetery with an affidavit as to the death of the deceased owner (attaching the certified death certificate) to transfer title. They can then sell the unused internment spaces subject to any vested rights of internments or waiver thereof.

When multiple persons own a family plot – either joint purchasers or as the heirs of the original owner – they should collectively designate one person as their plot representative. Otherwise, the cemetery could inter a person at the request of any owner without consultation with the other owners.

Even when all internment spaces are occupied it is still good for a surviving family member to be the record owner. As owner, the living family member can deal with issues related to the care and maintenance of the family plot and other issues where the cemetery needs to involve an owner. That way the interred family members can hopefully rest in peace.