FSL Chapter 09R3 - Methods of Disposition - Part 1

FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS

CHAPTER 9: METHODS OF FINAL DISPOSITION - INTERMENT,
ENTOMBMENT, NATURAL BURIAL, AND BURIAL AT SEA

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Methods of Final Disposition

Chapter 9(this presentation)
❖ Interment (burial)
❖ Entombment
❖ Natural (green) burial
❖ Burial at sea

Chapter 10(next presentation)
❖ Cremation
❖ Donation
❖ Alkaline hydrolysis
❖ Natural organic reduction

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Interment (Burial) Final Disposition

� A burial is defined as the act of placing a dead human body in the ground.

� A burial is formally called an interment, derived from the word inter, meaning ‘to bury in the ground.’

� Other methods use the word burial, but a traditional burial takes place in a ‘traditional’ cemetery, as compared to a burial at sea or a green burial in a green cemetery.

� For decades, interment was the predominant choice for disposition of human remains in North America.

� Today, there are more final dispositions by cremation than there are for interment in the United States and Canada.

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Interment (Burial) Final Disposition continued

� For a burial, funeral directors may be required to:

� file a certificate of death;

� obtain a burial permit; and

� in some states, personally supervise the interment.

� Do not confuse interment and internment

� Internment is a state of confinement, such as a prisoner of war being held and interned in an internment camp.

� Professional practitioners are careful to use the proper pronunciation when speaking about the burial disposition of human remains.

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Cemeteries

� A cemetery is an area of ground set aside and dedicated for the final

disposition of human remains.

� A public cemetery is a cemetery owned by a governmental unit (federal,

state, or local).

� A private cemetery is a cemetery owned by a private enterprise, such as

corporations, non-profits, partnerships, sole owners, and religious orders.

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Public Cemeteries

� For public cemeteries:

� The sale of graves are generally subject to anti-discrimination laws.

� State agencies promulgate rules and regulations that apply to all public

cemeteries alike. These rules may regulate such things as:

Specifications for outer

burial containers

Specifications for
receiving vaults
Maintenance of maps

Specs for monuments,

markers, and other goods

Availability of interments

on a six-day basis

Placement of monuments

and markers

Removal/repair of damaged

monuments and markers

Rights of landowner

access

Provision of directional

signs

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Private Cemeteries

� For private cemeteries:

� The sale of graves are generally not subject to anti-discrimination laws, and may therefore have special requirements, such as:

� only allowing persons of a certain faith to purchase graves; and

� requiring flush mounted markers.

� They may also adopt their own rules and regulations, such as:

� setting the hours of operation for when a burial may take place; and

� limiting the number of urns allowed per burial space.

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National Cemeteries

� National cemeteries are restricted to eligible veterans and active duty members of the U.S. Armed Forces and certain other public officials and employees.

� Members who died while on active duty or former members who served on active duty and were ‘discharged under other than dishonorable conditions’ are usually eligible for burial in a national cemetery.

� A spouse and dependent family members of a veteran may also be eligible for burial in the same cemetery.

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Military Discharge Classifications

� There are currently eight military discharge classifications, the five most

common of which are:

1.

Honorable discharge.

2.

General discharge under honorable conditions.

3.

Other than honorable discharge.

4.

Bad conduct discharge.

5.

Dishonorable discharge.

� The first two grant veteran benefits upon separation from service, including a Military Honor Guard for a funeral.

� The remaining three generally do not grant benefits, but may be reviewed for eligibility in unique cases by the Department of Veteran Affairs (VA).

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Military Discharge Classifications continued

� The remaining three military discharges that may be encountered are:

1.

Entry-level separation.

2.

Medical separation.

3.

Separation for the convenience of the government.

� These discharges may entitle a former member of the armed services to be buried in a national cemetery, but only the VA is authorized to make those decisions.

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Best Practice for National Cemeteries

� Advise the family of the need to confirm eligibility before making or

announcing plans for a national cemetery burial.

� Family survivors may not be aware a veteran is ineligible for this benefit. For example, the decedent may:

� not meet the minimum required periods of service time; or

� have a disqualifying criminal conviction; or

� have some legal action pending that would make them ineligible.

� Following approval, the role of the funeral director is to serve as a liaison

between military officials and the surviving family.

~ Wait for VA to confirm eligibility before making any commitments ~

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State Veteran Cemeteries

� Many states operate and maintain cemeteries for veterans.

� These facilities may be established using federal funds and have eligibility requirements similar to VA national cemeteries.

� Being a legal resident of the state is usually one requirement for eligibility to be buried in a state veteran cemetery.

� Funeral directors must contact the individual cemeteries to determine requirements, eligibility, potential benefits, and any applicable cemetery rules, bylaws, or regulations.

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State Veteran Cemeteries continued

� State cemeteries are operated solely by a state with no VA oversight.

� Most states operate at least one state veteran cemetery. Exceptions include Alaska, Florida, and Oregon.

� A complete contact list of all national and state veteran cemeteries is located on the VA National Cemetery Administration website.

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Pet Cemeteries

� The rapid rate of cremations has fueled significant support for the burial of human and pet cremated remains together.

� Some states have specific laws with regard to the burial of pet cremated

remains, including PA, VA, NY, NJ, FL and OR.

� Pet burials may be restricted as to:

� Location (traditional or pet cemetery).

� Placement (common or separate containers).

� Markers and monuments.

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Cemetery Locations

� Cemeteries are not a nuisance per se but may be regulated by zoning ordinances that specify where a cemetery may be built or operated.

� Locating cemeteries on any real property being operated by a funeral establishment may be prohibited by state of local laws.

� Funeral establishments may be prohibited from engaging in cross-marketing, shared services, or other business relationships with a cemetery.

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Eminent Domain

� Eminent domain is the inherent power of a government to take privately owned real property for public use.

� This power – in the 5th Amendment to the U.S. Constitution – requires ‘just compensation’ be given to the real property owner.

� Eminent domain may be used to take private cemetery land for a public use. For example, a state government may take land by eminent domain that is needed to build a new interstate highway. This could include a private cemetery (or any other real property), and the state would have to compensate (pay) the previous property owner for the
value of the land.

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Cemetery Structure

❖ Grave - Smallest; a burial plot.
❖ Lot - Several graves/interment spaces.
❖ Block - Several lots of multiple graves.
❖ Section - Largest space.

Grave

Burial Plot

Lot

Block

Section

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Cemetery Structure continued

Using this schematic as an example, human remains buried in GRAVE 2

would be recorded in cemetery records as being located in:

Section 1, Block 2, Lot 1, Grave 2.

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Cemetery Land and Rights

� Consumers do not purchase cemetery land but instead have exclusive rights to use the land for the burial of human remains.

� The cemetery retains ownership and grants a right for an interment in the burial plot, sometimes called ‘interment rights’ or ‘grant of exclusive right to
burial.’

� Consumers have the responsibility to determine the rightful use of a cemetery space, including a duty to obtain proper authorization to inter human remains.

� Funeral directors are generally not responsible for ascertaining rightful ownership of a burial plot before supervising a burial but must comply with all state laws and cemetery rules.

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Cemetery Laws and Rules

� The purchase, sale, and use of burial plots is regulated by state laws, rules, and regulations.

� Laws may regulate such activities as these five:

1.

The sale or transfer of burial plots and rights to a third-party, such as
members of the next succeeding generation.

2.

The priority right of a cemetery to buy back plots and rights from an existing owner before the owner may offer them as a private sale to others.

3.

​The transfer of burial plots and rights to others by means of a last will and testament or – where no will exists – by state laws that provide for the distribution of decedent assets.

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Cemetery Laws and Rules continued

4.

The right of the government or cemetery owners to reclaim grave spaces that have not been used for a specified number of years.

5.

The right of survivorship for a jointly owned burial space. When one owner dies, this right provides for the surviving owner(s) to automatically be granted the deceased owners’ share of the property.

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Cemetery Desecration

� Desecration is the treatment of burial plots with disrespect and contempt,

often in the form of vandalism or theft.

� Criminal laws may address this type of vandalism with statutes specific to a cemetery or other place of final disposition.

� Most statutes specify two types of illegal conduct:

1.

Damaging a cemetery location or place of interment of human remains.

2.

Stealing personal property from a cemetery location or place of
interment.
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Disinterment

� Disinterment (exhumation) is the removal of human remains from a previous location of final disposition.

� Private reasons for a disinterment may include:

� a desire to move human remains to a different section in a cemetery or to

a different cemetery entirely;

� a desire to consolidate several burial plots located in different locations or cemeteries into one large family lot in one specified cemetery; or

� to recover improperly buried valuables or items of personal significance.

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Disinterment continued

� Public reasons for a disinterment may include:

� a substantiated public interest, such as a criminal prosecution;

� eminent domain proceedings to seize real estate on which a cemetery is located; or

� when the government determines a disinterment is needed to ensure public health and safety.

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Disinterment - Legal Considerations

� States usually require a permit to authorize the disinterment and subsequent reinterment of human remains

� Some states do not require a permit when human remains are only being moved from one burial plot location to another in the same cemetery.

� When human remains are moved to a different location, states usually require a correction be made on the original certificate of death to reflect the proper location of the final disposition.

� When a disinterment is sought for a public reason, authorization may come in the form of a court order; but a permit is still usually required for tracking the final disposition location and correcting the original certificate of death.

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Disinterment - Funeral Director Role

� For disinterments, funeral directors may be required to:

� coordinate with the family and public officials;

� file the permit application;

� supervise the disinterment;

� transport the human remains; and

� supervise any subsequent reinterment.

� Many states also require a funeral director to examine the burial container at the time of disinterment to ensure it has retained its integrity and – in those cases where it has not – transfer them to another container for transportation and reinterment.

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Disinterment - Priority Right

� The individual with the priority right to control a disposition at the time of death may not always be the same person authorized by law to request a disinterment.

� State laws vary considerably and should be consulted prior to agreeing to a request for disinterment from a private person or organization.

� In all cases, if there is any conflict or dispute between the parties, it must be resolved by the parties themselves or a court of law, not the funeral director.

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Entombment Final Disposition

� Entombment is the placing of human remains in a crypt in a mausoleum.

� Entombment safeguards human remains above ground in a building or structure designed specifically for the purpose

� Mausoleums may:

� require human remains be embalmed; and

� prohibit wooden caskets that could rot and deteriorate over time, there by creating health issues and concerns.

� In most states, the transfer of human remains from a mausoleum for disposition in a different manner or location is handled in the same fashion as a disinterment.

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Natural (Green) Burial Final Disposition

� A green burial is the disposition of human remains without the use of toxic chemicals or materials that are not readily biodegradable.

� This eco-friendly approach utilizes products, services, and goods that are: free of toxic or hazardous materials; biodegradable; and minimize the use of energy.

� Dispositions may have unique goods and services, such as special containers – known as green carriers or conveyances – and designated cemeteries. For example, a green cemetery bans the use of metal caskets, toxic embalming, and concrete vaults, and may require aesthetically pleasing natural monuments.

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Regulation of Natural Burials

� There are no federal regulations specific to natural burials; however, many states have laws to protect the environment and public health.

� Many laws focus on the location where burials take place, especially when near underground water supplies or there is a potential for ground
contamination.

� Before offering natural burials, establishment owners should determine what requirements or restrictions, if any, apply in the communities they serve.

� Crossing state and municipal boundaries – as well as national borders – must be also taken into consideration when transporting human remains that have not been embalmed.

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Burial at Sea Final Disposition

� Dispositions at sea are regulated by the U.S. Environmental Protection Agency (EPA).

� The EPA requires dispositions take place at least three nautical miles from land and in water at least 600 feet deep.

� Funeral directors must comply with all EPA rules and regulations with respect to preparing the human remains and the container for the burial at sea.

� This unique method requires a suitable vessel for transportation, and there are private companies that offer these services, similar to companies that deliver and place burial vaults at the time of a traditional burial in the earth.

~ See Guide 4 for EPA Burial at Sea Instructions and legal requirements ~

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Burial at Sea - Veterans

� Burial at sea for military personnel are handled by the United States Navy.

� Individuals eligible for this program include:

� active duty members of the uniformed services;

� retirees and veterans who were honorably discharged;

� U.S. civilian marine personnel of the Military Sealift Command; and veterans of the uniformed services.

~ See Guide 5 for the U.S. Navy Burial at Sea Program ~

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THE END

Author: Larry J Cleveland

Publisher: Hudson Valley Professional Services

PPT Release: #3 June 2022
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FUNERAL SERVICE LAW

IN THE UNITED STATES, 2nd ed.

A GUIDE FOR FUNERAL SERVICE STUDENTS