Burial lots are not real estate

Law Offices of Fred M. Duman & Associates
2807 Castro Valley Boulevard     Castro Valley, California 94546
Tel: (510) 537-3388 Fax: (510) 889-1114

Dear Mr. Duman:

I have noticed from time to time cemetery plots for sale.  Ultimately a cemetery plot makes use of a piece of real estate.
Can you describe what ownership of a cemetery plot means legally?
How is ownership transferred?

T.H., Livermore

Dear T.H.:

Owners of cemetery lots are not considered to be the owners of real estate.  What they own is a right to be buried on the cemetery lot.  The ownership, which is considered to be an interest in real property, may be a type of “easement” or a “license”.  However, the right to be buried will be protected by the courts of equity.

 Cemetery lots, conveyed to individuals, are presumed to be the sole property of the owner named in the instrument of conveyance.   In turn, the owner is free to sell, give, contract or Will his/her cemetery plot to others, as with any other property.

The purchaser of a cemetery plot retains the right to maintain the bodies which are interred the cemetery until such time as the bodies are lawfully removed.

The title-holder to a cemetery plot is not free to use the property without restriction.  Specifically, the right of a cemetery plot owner is limited to the right to use the property as a burial site, only.  Other use limitations may also apply, depending upon the terms of the purchase agreement.  Further, the rights of interment are generally restricted to those persons designated in the conveyance or devise.

When a cemetery plot is never used, or when the intended remains are lawfully removed, ownership of the lot will pass according to the owner’s Will (or other governing instrument). In the absence of such a writing, ownership will pass to a deceased owner’s heirs at law.

 When the owner is survived by a spouse, and the subject cemetery lot has more than one interment space, such surviving spouse will retain a vested interest to one of the spaces, despite a contrary disposition by the deceased owner (unless the surviving spouse has consented to such contrary disposition).  A spouse’ rights to an interment space  automatically terminates upon divorce from the title owner, unless the divorce decree specifically provides otherwise.

When multiple interment spaces exist on a cemetery plot, and the owner of the plot or a member of the owner’s family is buried there, and, the interred deceased owner has not otherwise devised or disposed of the remaining spaces, the family of the decedent may  legally preserve the remaining spaces as the "family plot".  One place in a family plot may be used by the owner and another by the surviving spouse.  Other spaces may be used by the parents and children of the owner in the order of the time of their respective deaths.

 Any surviving spouse or family member, who is entitled to be buried in the family burial plot may waive his/her right to the space in favor of another relative or family member.

Our readers with specific questions regarding this area of law should consult with their lawyer, who will be able to evaluate their particular circumstances and advise them accordingly.

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This page last updated February 4, 1999.
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