subject: The Rights of Burial [print this page] The Rights of Burial The Rights of Burial
The Rights of Burial
Once a deed to a cemetery lot or plot has been purchased,the grantee, or person to whom the deed is delivered ordrawn, acquires a right of sepulture or burial in the form ofan easement or irrevocable license to use the plot for burial aslong as the land remains devoted to cemetery purposes. Thisright must remain subject to the reasonable regulations of thecemetery and of the public authorities even though these regulations are adopted or changed after the lot has beenpurchased. Rules prohibiting the planting of certain types ofvegetation, shrubbery, or trees are considered reasonable asare rules regulating the size, design, and inscriptions on monuments, markers, or tombstones, and rules regulating hours ofaccess to the cemetery.
Learn More About Life Estate Planning Today!
There is a difference between the ruleswhich may be promulgated, and the conditions which may beattached to the sale of the lot or of the easement. Cemeteriesnot operated by public authority usually are organized in theform of membership corporations, and they are not bound toaccept as lot purchasers all who apply. Cemeteries operated byreligious denominations may validly limit interment to com municants or adherents of the particular faith or sect involved and may permit or deny exceptions in their own discretion. However, once they begin to make exceptions, they will then open the door to a judicial review of the reasonableness of theexceptions or dispensations.
In the absence of statutes, the courts have upheld apparentdiscrimination where regulations of private cemetery associations have restricted the right of burial. In some cases, thelimitation of burial to members of the Caucasian race hasbeen upheld despite the tendency of the courts of the UnitedStates away from any form of discrimination whatsoever. Inan Iowa case, a Caucasian woman who held a lot in a privatecemetery sued to recover damages for the cemetery's refusalto permit her husband, a Winnebago Indian, to be buried inthe cemetery. He had been killed in action in Korea and hiswidow was understandably outraged by the refusal of thecemetery to permit the interment of a hero who had made thesupreme sacrifice for his country. The cemetery lot, however, was covered by a restricted racial covenant at the time of the purchase, and this covenant was contained in the deed. TheSupreme Court of the State of Iowa upheld the covenants andthe restrictions and the decision was affirmed by an equallydivided United States Supreme Court, four justices voting toaffirm and four justices voting to reverse. The United States Supreme Court granted review but subsequently dismissed theappeal as having been improvidently granted, for the reasonthat the State of Iowa had enacted legislation prohibiting suchdiscrimination and invalidating restrictive covenants and regulations.
As often happens in cases of this kind, decisions whichfollow the law, and are unpopular, and are illustrative of themaxim that "hard cases make bad law" are overruled by actsof the next session of the state legislature. In Minnesota,a court decision upholding a restrictive covenant in a cemeterydeed was overruled by a statute enacted at the next session ofthe legislature, outlawing racially restrictive rules or covenants"running" with plots in cemeteries whose gravesites were sold to the public and were not limited to members of a particular sect or creed. Throughout the United States, the trend towardelimination of such restrictive clauses and covenants is nowunmistakable.
