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Estate Planning and Burial Arrangements: Organizing your Family’s Burial Plan

 

Rebecca MM Kniffenby Rebecca MM Kniffen, Esq.
June 15, 2023

 

Creating an estate plan is one of the most responsible and compassionate things you can do for your loved ones. In addition to protecting family assets, offering direction to grieving loved ones, and providing for the transfer of assets in the most tax efficient manner, a holistic estate plan also incorporates funeral and burial wishes, including instructions for disposition of remains after death.

This article will address some common questions related to organizing your family’s burial plan in New York State. Every estate plan is unique, however, so be sure to discuss your specific wishes with your attorney when addressing your estate plan.

Why is it important for me to make funeral and burial arrangements during life?

 Planning for one’s funeral and burial can be a daunting process; however, having a burial plan is important for several reasons. First, making your wishes clearly known will make the process easier for your loved ones and help to prevent unnecessary conflict and strife. Second, if your religion requires that certain funeral or burial practices be followed, having a detailed plan in place ensures that these requirements will be met. Third, by pre-paying for funeral and burial costs, you can avoid any financial surprises or potential burdens to loved ones related to the cost of a burial or memorial. Furthermore, pre-paying for your funeral is one of the ways you can lower your countable assets if you plan to apply for Medicaid benefits.

What are my options for purchasing space in a cemetery?

When deciding where to be buried, cemeteries are one of the most commonly considered locations. While that may sound obvious, what might be less apparent is that there are different options regarding disposition inside of a cemetery. Popular resting places inside of a cemetery include a cemetery plot or individual graves (where bodies or cremated remains are buried in the ground), a mausoleum (for the “above-ground entombment of full-body remains”), or a columbarium (for the “above-ground inurnment of cremated remains”).[1]

A common dilemma that couples face is wanting to be laid to rest together but having differing wishes regarding cremation and disposition of remains. Knowing the options available at your cemetery of choice can help alleviate the anxiety of being separated after death. Some cemeteries will allow for multiple internments at the same grave or lot, even if the remains have been preserved differently. For example, subject to cemetery policy, it is possible to have cremated remains buried with a full body in the same lot or grave. Some cemeteries will even allow the internment of cremated pet remains to be buried with their human counterparts.[2] If you wish to be laid to rest with certain other people (or pets), we recommend contacting your cemetery directly to discuss your options.

It is important to note that purchasing a gravesite is not a real estate transaction. Instead, when you buy a final resting place, you are purchasing the right of internment and the right to memorialize.[3] The right of internment refers to the “below-ground or above-ground placement of remains.”[4] The right to memorialize means that you “can decide what memorial or structure will be placed on [your] final resting place and what it will say, limited by whatever rules the cemetery has for memorials.”[5] In other words, you are purchasing the right to have your remains held at your chosen location and the right to dictate what that location looks like, as opposed to buying rights related to possession of the land. As such, the laws that govern cemeteries are not the same as those that govern real estate and can require specific expertise, especially if multiple people have ownership interests in the same space. Such a space can include family burial plots.

All New York State cemeteries are required to operate on a not-for-profit basis.[6] As such, public cemeteries are formed as “cemetery corporations” under Not-for-Profit Corporation Law, Article 15, and are subject to state regulation by the New York State Cemetery Board and Division of Cemeteries within the Department of State.[7] Certain cemeteries, such as religious or municipal cemeteries,[8] do not fall under the purview of such State regulation and may have their own internal rules and regulations. Differences in rules and regulations can result in differing services and options for your burial.

Regardless of which type of resting place you prefer, be sure to research the cemetery of your choosing. Call or visit potential burial sites and discuss with the staff information relating to the different services they can provide for you and your family. Be sure to also ask about any fees outside the purchase of your space, including one-time service fees, such as opening and closing a grave, and recurring fees, such as fees related to grave or cemetery maintenance.

What are some alternative burial options?

“Green” burials, where people are allowed to return to Earth without harsh chemical preservations, have recently risen in popularity.[9] By way of example, perhaps New York’s most famous cemetery, Sleepy Hollow Cemetery, has a progressive new section of their cemetery called the Riverview Natural Burial Grounds, which offers a “sustainable” choice for burial.[10] In this space, no non-organic fertilizers or pesticides are used, no embalmed bodies are buried, and only organic, untreated, biodegradable, and natural materials may be used.[11] Another trending option is to mix one’s ashes with soil and use the mixture to grow trees or other plants. There are many organizations that specialize in alternative arrangements. The Green Burial Council, a not-for-profit organization promoting sustainable burial options, can also be a resource for those looking for an environmentally friendly burial choice.[12]

Family cemeteries, held on family or private land, are less popular now than they once were, but still exist in New York. While New York State law does not prohibit burial on private property, it is advisable to check with local government on how to best address your burial plan if you wish to be buried at home, as some restrictions may apply. Various communities will have local regulations regarding private burials or spreading ashes, and New York State Sanitary Code does require a certain distance between burial locations and water sources.[13] New York State also has laws governing at-home funerals, which include requiring the presence of a funeral director at the final point of disposition, signing and filing of death certificates, and obtaining transit and burial permits.[14]

I want my ashes spread in a public place – is that legal?

Estate planning attorneys frequently get asked about the legality of spreading ashes in certain locations, like at sea or in public parks. It is always best for you to check with the local government before disposing of human remains anywhere, but fortunately, there has been some guidance for particularly common locations.

For those who want to have their ashes spread in the ocean, the Environmental Protection Agency (“EPA”) has issued a general permit under the Marine Protection, Research and Sanctuaries Act to allow for cremated ashes to “be buried in or on ocean waters of any depth provided that such burial takes place at least three nautical miles from land.”[15] However, there are restrictions on materials that can be disposed of with the ashes (i.e. containers, personal items, flowers, etc.) and you must notify the EPA of the burial within 30 days following the event.[16] Importantly, the EPA does not allow for ashes to be spread at beaches near the ocean.[17] This general permit also only applies to federally regulated bodies of water, such as the ocean, and may not necessarily include lakes, rivers, or other inland waters.[18]

For those who want their ashes spread in a park, certain National Parks will allow for memorialization, but a special use permit is required. Your loved ones may apply for such a permit through the National Park Service website. Each individual National Park will have its own requirements and restrictions, so it’s important to research your particular location to be sure the correct arrangements are made. If you would like to have your ashes spread on other federally owned or public land, you will typically need permission to do so, as it may be prohibited in certain areas.[19]

Last, there is no law prohibiting spreading ashes on your own private property, but if you want to spread your ashes on private land you do not own, you should always get permission from the landowner.[20] As a reminder, it is always safest to check with the proper authorities to make sure you are not in violation of any laws or ordinances when planning on having your ashes spread at a certain location.

I decided to buy a plot for my family at a public cemetery. Does that mean I get to decide where everyone is buried?

Whether you want a full-body burial or a resting place for your ashes, managing your family cemetery plot is a very important part of estate planning. Your family’s gravesite is usually identified by a section, lot, and slot number. The section typically refers to the larger area within a cemetery in which your lot is located, and a lot refers to the area that holds the individual graves or “slots.” It is up to the lot purchaser to decide who the lot owner or owners will be and a lot purchaser does not have to be a lot owner.[21] The lot owners will be responsible for managing the lot and will have the option to assign graves.

A lot owner may decide whose remains can be placed in the lot.[22] To effectively assign graves or slots to specific people, a lot owner may either i) file a written assignment with the cemetery; or ii) include such assignments in the lot owner’s Will.[23] Some cemeteries will have their own forms that lot owners may use. Otherwise, there are specific legal requirements such assignments must meet, and a lot owner should check with their cemetery or attorney before signing anything.

Leaving property to a beneficiary in a Will is referred to as “devising” such property and there are certain rules about devising cemetery lots or slots in your Will. One example is that no interest in any cemetery lot, plot, or slot may pass by a residuary or other general clause in a Will.[24] A residuary clause in a Will provides direction as to how property will pass if it was not specifically referred to in the Will. Therefore, if you want to devise your cemetery lot or certain slots to particular individuals, you must specifically designate them in your Will and reference the exact section, lot, and slot number(s). Be sure to have this information ready when you meet with your estate planning attorney about your Will.

If there is no written designation, New York law currently states that the lot will be inherited by the surviving descendants of the lot owner.[25] This can, however, be defeated by joint tenancy or tenancy by the entirety, in which case the lot would automatically pass to the joint holder.[26] Certain family members of a lot owner, such as spouses, children, and parents, may have burial rights regardless of whether they are named in a written designation or in a Will.[27] To avoid inter-family conflict, lot owners should speak to their families regarding burial wishes and make such lot or grave assignments during life. In the event of such a conflict, you should meet with your attorney so that you may be advised of your rights.

In the event the cemetery lot is inherited by multiple people, an Affidavit of Heirship may be filed with the cemetery detailing the names and addresses of all new lot owners.[28]  Once the new lot owners have been recognized, the lot owners will have the option to designate a single person to represent the group and make decisions about the lot, or if no representative is selected, the cemetery is allowed to choose a representative with whom to confer.[29] All lot owners may still jointly file a written designation reserving specific graves for specific individuals.[30]

There are many benefits of estate planning, including giving yourself more control over what happens when you pass away and providing comfort and peace of mind. If you have questions related to your estate planning or disposition at death, please reach out to the knowledgeable estate planning attorneys at Cohen, Soloway & Wooldridge, P.C., to discuss your concerns and help guide you through the process.

Footnotes

[1] About Cemeteries in New York State, Buying a Final Resting Place, N.Y. State Dep’t of State, Div. of Cemeteries,  https://dos.ny.gov/system/files/documents/2021/06/buyingrestingplace.pdf.

[2] About Cemeteries in New York State, Final Disposition Options and Disinterment, N.Y. State Dep’t of State, Div. of Cemeteries, https://dos.ny.gov/system/files/documents/2021/06/finaldisposition.pdf.

[3] N.Y. State Dep’t of State, supra note 1.

[4] Id.

[5] About Cemeteries in New York State, Burial Arrangements and Memorialization, N.Y. State Dep’t of State, Div. of Cemeteries,  https://dos.ny.gov/system/files/documents/2021/06/burialarrangements.pdf.

[6] N.Y. State Tug Hill Comm’n, Abandoned Cemeteries and Municipal Responsibilities 2 (Feb. 2023),  https://www.tughill.org/wp-content/uploads/2018/08/AbandonedCemeteriesAndMunicipalResponsibilities2018.pdf.

[7] Id.

[8] Cemetery Frequently Asked Questions, N.Y. State Dep’t of State, https://dos.ny.gov/cemetery-frequently-asked-questions (last visited June 5, 2023).

[9] City Bar Justice Center, A Guide to Funeral and Burial Options in New York 7 (2021), https://www.citybarjusticecenter.org/wp-content/uploads/2016/09/Guide-Funeral-Burial-Options-in-NY-ENGLISH.pdf.

[10] Green Burial, SleepyHollowCemetery.org, https://sleepyhollowcemetery.org/green-burial/ (last visited June 5, 2023).

[11] Id.

[12] Green Burial Council,  https://www.greenburialcouncil.org/ (last visited June 5, 2023).

[13] N.Y. State Dep’t of State, supra note 8.

[14] City Bar Justice Center, supra note 9, at 9.  

[15] Burial at Sea, U.S. Envtl. Prot. Agency, https://www.epa.gov/ocean-dumping/burial-sea (last visited March 6, 2023).

[16] Id.

[17] Valerie Keene, Burial and Cremation Laws in New York, NOLO.com https://www.nolo.com/legal-encyclopedia/burial-cremation-laws-new-york.html (last visited June 5, 2023).

[18] U.S. Envtl. Prot. Agency, supra note 15.

[19] Crematory Frequently Asked Questions, N.Y. State Dep’t of State, https://dos.ny.gov/crematory-frequently-asked-questions (last visited June 5, 2023).

[20] Keene, supra note 17.

[21] N.Y. State Dep’t of State, Div. of Cemeteries, supra note 1.

[22] Id.

[23] Id.

[24] N.Y. Not-For-Profit Corp. Law § 1512(b) (2023).

[25] Id.

[26] Id.

[27] N.Y. State Dep’t of State, Div. of Cemeteries, supra note 1.

[28] Id.

[29] Id.

[30] Id.