Robert M Fells. Handbook of Death and Dying. Editor: Clifton D Bryant. Volume 2. Thousand Oaks, CA: Sage Reference, 2003.
Depending on the definition (Burek 1994), there exist at least 23,000 cemeteries in the United States or as many as 200,000. Cemeteries are not monolithic in structure but are organized in a variety of ways, from private not-for-profit entities to religious, municipal, and fraternal cemeteries and for-profit corporations. It is important to understand the legal structure of a particular cemetery because that affects the extent to which it is subject to government regulation. For example, religious, municipal, and fraternal cemeteries are commonly exempt from laws regulating for-profit and nonprofit cemeteries. Several states also prohibit cemeteries from being operated as for-profit businesses. To date, there is no federal statute specifically regulating cemeteries, although they are covered, as with other businesses, by dozens of federal laws and regulations affecting wage and hour compensation, worker safety, the environment, and related issues. Cemeteries are specifically regulated at the state level, and at the present time, there is little uniformity among the various states concerning the many areas subject to regulation (International Cemetery and Funeral Association [ICFA] 1998a).
This chapter focuses on the five major areas specifically relating to cemetery regulation that affect consumers:
- Maintenance and care functions
- Prepaid contracts and trust funds
- Restrictions on what cemeteries may sell
- Contract disclosure provisions
- Government regulatory agencies
A final section discusses a variety of other considerations in cemetery operations. Each subject will, by necessity, involve a discussion of related issues. For example, to assess the legal duties of care and maintenance of a grave site, it is first necessary to discuss exactly what a consumer is buying when he or she purchases cemetery property. Perhaps the most important exclusion in this discussion is an extended examination of tax issues. State governments subject cemeteries to taxation in a variety of ways, all the methods being creatures of statute with no particular rationale behind any of them except the need to raise revenue. Therefore, a nonprofit or tax-exempt cemetery may be “tax exempt” only from paying income tax on its sales proceeds. Assessments for sales tax and real property taxes may still accrue regardless of the cemetery’s organizational structure. For example, Connecticut does not assess real property tax on cemeteries at any stage of development. The Commonwealth of Pennsylvania, however, assesses real estate taxes on undeveloped cemetery property but exempts each burial lot when it has been sold (ICFA 1998a).
At present, there may be a growing consensus among some industry members, consumer advocates, and government regulators that a uniform system of state cemetery laws would be productive and lessen any confusion regarding legal requirements from state to state. The International Cemetery and Funeral Association (ICFA), a trade association representing approximately, 6,000 cemeteries, funeral homes, crematories, and related entities, has recently published a compilation of 28 “model guidelines” for state laws and regulations to encourage uniformity among the states (ICFA 1998b). The model guidelines deal with diverse topics such as record keeping, procedures for handling cremated remains, disclosures on prepaid contracts, solicitation, consumer guarantee funds, and disinterment issues. Selected references to the model guidelines will be made where appropriate throughout this chapter.
Maintenance and Care Functions
A common point of confusion among the public concerns the issue of what exactly is being purchased when cemetery property is acquired and who is responsible for the future care and upkeep of the property. Historically, practices varied, but by the second half of the 20th century, it was well established among American cemeteries that the purchase of cemetery property, whether a lot for ground burial or a mausoleum crypt for the entombment of the dead, conveyed a limited right to use the property for the disposition of human remains. In other words, the cemetery maintained the fee-simple ownership of the ground itself. The rights conveyed to purchasers were in the nature of an easement, subject to the reasonable rules and regulations of the cemetery authority (Shay 1961). This treatment of cemetery property extends to columbarium niches for cremated remains and lawn crypts, which are belowground structures similar to mausoleum crypts.
Cemetery rules and regulations are similar in purpose to the restrictive covenants imposed by homeowners associations in residential subdivisions. Typically, purchasers of cemetery property agree, as a condition of the sale, to comply with cemetery rules as presently drafted and as amended in the future. Among other things, these regulations may specify the size and types of memorials and monuments permitted in the cemetery. For example, a “memorial park” cemetery prohibits traditional upright monuments and allows only flat, ground-level memorials. This restriction is necessary to maintain the parklike atmosphere of these cemeteries. Likewise, a traditional “monument” cemetery may prohibit the use of flat, ground-level markers. In recent years, some cemeteries have dedicated certain sections as memorial parks and other sections for traditional vertical monuments to accommodate all preferences. Courts have generally upheld these restrictions provided they were reasonable in nature (American Jurisprudence 2d 2000; Shay 1961).
The legal right to use cemetery property resides with the original purchasers but is assignable and may be devised through a will to heirs or other designated individuals. It appears that throughout the 19th century to the early 20th century, the care and upkeep of grave sites was the responsibility of the purchasers or, on a more practical level, the family of the decedents who were buried there. As families became more mobile and as cemetery ownership evolved from volunteers primarily associated with churches and municipalities to individuals and companies, the responsibility for ongoing cemetery maintenance became an issue. At first, cemeteries assessed an annual fee to perform yearly maintenance, but as families moved away from an area, payment of the annual fee became inconsistent and often ceased altogether (Brennan 1951).
The concept of “endowed care,” sometimes called “perpetual care,” developed whereby purchasers of cemetery property paid a one-time assessment at the point of sale for the long-term care of the grave site and the general facilities at the cemetery. With this assessment, cemeteries no longer needed to solicit annual contributions from family members who may have relocated out of the area. The cemetery could also develop long-range fiscal plans for the care of the grounds knowing that an exact amount of funds were available. Key to the endowed care concept was that monies paid for maintenance were deposited into trust and the principle of the trust never spent. Instead, the funds were invested in relatively conservative equities or bonds and only the income generated from the trust was spent on cemetery care and upkeep (Brennan 1951).
In time, the endowed care concept was codified into the statutes of virtually every state as a requirement for cemeteries that sold property to the public. Newly established cemeteries were required to fund the care trust prior to selling lots to the public (ICFA 1998a). The ICFA model guideline for “Endowment Care Trust Funds” provides a good overview of the mechanics of establishing and administering such trusts:
A cemetery endowment care trust fund is designed to ensure that income will always be available for the continued maintenance and upkeep of the cemetery, even when all the interment spaces are sold. The cemetery authority should not be permitted to withdraw the principal of the endowment care trust fund, but receives the income earned by the principal to offset maintenance expenses.
These endowment care trust funds often have two components: general care and special care. The income from the general care portion of the endowment care trust fund is used to maintain the entire cemetery based on priorities set by the cemetery authority. Special care is supplemental to or in excess of endowment care, and in accordance with the specific directions of any donor of funds for such purposes, might include care of a specific interment space, care of plantings in a designated area, maintenance of memorials, flower placements, and so on.
Determining an “adequate” level of maintenance for any cemetery is quite subjective. Because each cemetery is unique and has maintenance needs which vary over time, it is impractical to set general standards for maintenance. There are many variables that can contribute to changing maintenance needs of a cemetery, so each cemetery authority should have flexibility in setting priorities for expenditures.
It is common for a cemetery authority to subsidize maintenance costs from current income until the cemetery has sold most of its interment spaces. Because sales taper off, rather than ending abruptly, a cemetery can be “sold out” from a practical standpoint although it still has some interment spaces remaining to sell. When a cemetery is no longer active, its administrative and service costs will be lower, thereby reducing the operating expenses necessary to maintain the cemetery.
The cemetery authority of an endowment care cemetery should adopt a written policy which covers the investment philosophy, goals, responsibilities, and strategy for the way in which the endowment care trust funds are to be managed and invested.
The imposition of unreasonable investment restrictions may not provide adequate protection of purchasing power of the endowment care trust fund.
The trustee’s duties and responsibilities concerning an endowment care trust fund should be detailed in the trust instrument. The investment management of assets held in the trust should be governed by the “Prudent Investor Rule,” under the “Uniform Prudent Investor Act,” which was developed by the National Conference of Commissioners on Uniform State Laws, to set general standards for trustees; to allow trustees flexibility in choosing investments; to specify that their work is to be judged on the basis of the performance of all their investments; and to allow them to delegate investment decisions. (ICFA 1998b)
The statutory amounts required to be deposited into a care trust are typically considered as “minimum” funding that are not necessarily adequate to generate sufficient income for future needs when the cemetery is eventually filled. The required deposits are expressed either as a percentage of the sales price or as a dollar amount. For example, Colorado requires a minimum of 15% of the sales price for burial lots and 10% of the sales price for crypts or niches. Hawaii requires a minimum deposit of $20 for lots, crypts, or niches. Texas cemetery law requires a deposit of 10% of the sales price for lots or $1.50 per square foot, whichever is greater; 5% for crypts or $90, whichever is greater; and 10% for niches or $30, whichever is greater (ICFA 1998a). Regardless of the statutory amounts required for deposit, the more sophisticated cemetery operations develop their own projections of future maintenance expenses and assess amounts in excess of the statutory minimums. Religious, municipal, and fraternal cemeteries are generally exempt from statutory funding requirements. Although some of these cemeteries have voluntarily established their own endowed care trust funds, many have not and are at risk for future maintenance problems when income received from current operations is eventually curtailed.
Prepaid Contracts and trust Funds
A second type of trust funding commonly found in cemeteries relates to merchandise and services purchased before need—that is, prior to a death or prior to the need to perform a burial. Unlike “at-need” purchases for which the merchandise and services are obtained and used immediately due to a death, prepaid or “pre-need” arrangements involve items that may not be needed for years or decades to come. Typically, pre-need purchasers arrange their own burials and select the lot, crypt, or niche location they prefer and may even design the type of memorial they want. Payments are often made in small monthly installments over a period of years. Where the prepaid contract specifies a guaranteed price, the purchaser cannot be charged an additional amount in the future for the items he or she has purchased. In effect, the seller is guaranteeing the price against future increases, including inflation, labor costs, or wholesale price adjustments. Prepaid arrangements can also spare family members and survivors from the stress of having to make emotional and costly decisions hurriedly at the time of death.
The majority of states require cemeteries to deposit all or part of prepaid funds into a trust until the merchandise is delivered and the services performed. The cemetery cannot claim the funds for its own use or record them as income, although some of the interest earnings may be withdrawn under certain circumstances. Typically, the trust must be established at a federally insured financial institution, and deposits must be made within 30 days of receipt by the seller. The grace period between receipt and deposit allows for cancellations and refunds to be made without unnecessary transactions in the trust account. In the case of guaranteed price contracts, the investment earnings of the amounts placed in trust will offset price increases due to inflation and other factors. The seller bears the risk of any shortfalls in earnings to cover its costs, but actuarial studies indicate that this risk is relatively minor.
A recurring issue concerns how much of the funds should be deposited in the trust until the contract is performed. The amounts to be placed in trust depend on the purpose of making the deposits initially. For example, one school of thought advocates the trusting of all funds received from the purchaser. The rationale behind this view is that until the seller has earned the proceeds by performing the contract, it should not be entitled to receive any benefit from the sale. One hundred percent trusting is also advocated as protection against the seller’s insolvency or inability to perform the contract. In this way, the purchaser will receive restitution of his or her funds. This viewpoint, however, ignores the fact that sellers do not pay retail prices to obtain the merchandise or services and that the wholesale prices they do pay are a fraction of retail. In addition, where a seller must deposit all or nearly all the prepaid sales proceeds into trust, there is no income available to pay for the typical cost of the sale, including overhead and advertising expenses.
Perhaps the only valid reason to require the trusting of all or nearly all the prepaid contract funds is to protect the consumer in the event the seller becomes insolvent. This potential is more effectively handled, however, through the establishment of a consumer protection fund, administered by the state government, and funded by assessing a small fee, usually not more than $5, on each prepaid contract. It should be pointed out that the proceeds from the sale of cemetery property such as burial lots, crypts, and niches are not usually subject to trust requirements because these items can be immediately provided to the purchaser when paid in full. The only exception to this policy involves the sale of “preconstructed” or “predeveloped” property for which the sales proceeds are deposited in trust pending completion of the construction—that is, developing a new section for burial lots or building a mausoleum crypt. The sales price tends to be discounted from the cemetery’s current prices for existing property to provide consumers with an incentive to purchase. Should the construction not proceed, the funds are released from trust and returned to the purchasers.
The ICFA model guideline, “Prepaid Contract Trust Funds,” outlines a number of considerations in the implementation of theses trusts:
Sound business practices and the principles of consumer protection have mandated certain restrictions on the disposition of preneed funds prior to the performance of the prepaid contracts, without imposing unreasonable and anti-competitive restraints on the marketplace. An adequate portion of the proceeds must be preserved to assure the seller’s performance at the time of need. Sellers who actively market prepaid contracts incur the usual costs of such efforts, such as sales commissions, administrative overhead, and advertising expenses. Each sale must generate sufficient cash flow to enable the seller to cover these costs.
A primary mechanism for safeguarding adequate funds received from the preneed sale of merchandise and services is by placing a portion of these funds into a prepaid contract trust fund, that is administered by a trustee pursuant to a written trust instrument. Following performance of the prepaid contract, the seller is then entitled to withdraw the funds contributed, along with any undistributed earnings attributable to that prepaid contract. This type of trust has a finite life, in that all funds would eventually be distributed when each prepaid contract is serviced.
The seller of a prepaid contract should adopt a written policy which covers the investment philosophy, goals, responsibilities, and strategy for the way in which the prepaid contract trust funds are to be managed and invested.
The imposition of unreasonable investment restrictions may not provide adequate protection of purchasing power of the prepaid contract trust fund. Likewise, unlimited cancellation and refund rights undermine the protection of a mutually binding prepaid contract, necessitating irregular withdrawals from the prepaid contract trust fund.
The trustee’s duties and responsibilities concerning a prepaid contract trust fund should be detailed in the trust instrument. The investment management of assets held in the trust should be governed by the “Prudent Investor Rule,” under the “Uniform Prudent Investor Act,” which was developed by the National Conference of Commissioners on Uniform State Laws, to set general standards for trustees; to allow trustees flexibility in choosing investments; to specify that their work is to be judged on the basis of the performance of all their investments; and to allow them to delegate investment decisions.
Several other alternatives to trusting, such as constructive delivery, financial instruments, and insurance-funded prearrangements, are reviewed under separate guidelines. (ICFA 1998b)
Finally, it is worth noting that consumers are sometimes advised never to prepay any funeral or burial plans but, instead, set aside such funds under their own control in personal bank accounts. At the time of the consumer’s death, these funds are designated to be released to pay the costs of burial. The chief disadvantage of this approach is that these funds are not sheltered from unanticipated expenses of the final illness, including hospital and doctors’ bills and amounts not covered by insurance, including any patient copay. Despite prudent financial planning, these accounts and other assets of the consumer that are not shielded from debts can be depleted by the time the death occurs, leaving no funds available for the funeral and burial. By contrast, funds paid into a prepaid contract or set aside as part of an irrevocable agreement are generally not subject to creditors’ claims.
Restrictions on What Cemeteries May Sell
Although most states regulate cemeteries as business entities operating in a free market economy, a number of states continue to impose restrictions on cemeteries that affect their ability to sell grave memorials and monuments, grave liners and vaults, and even associate with funeral homes. Likewise, some state laws prohibit anyone other than a licensed funeral director from selling caskets to the public. Increasingly, many of these restrictions are being challenged in federal court by industry members on constitutional and antitrust grounds. Recent decisions, some currently on appeal, have invalidated some state laws as being unconstitutional or in restraint of trade. This section will review the considerations in restricting the sales activities of cemeteries.
The Internal Revenue Code provides a tax-exempt classification for cemeteries under section 501(c)(13). Similar to other tax-exempt entities under the code, income-producing activities must be related to a cemetery’s exempt purpose in order to obtain and then maintain its federal income tax exemption. As a result, the Internal Revenue Service (IRS) has made determinations through the years of cemetery activities that are within the scope of its exempt purpose and those activities that are not. For example, in 1964, the IRS ruled that a 501(c)(13) cemetery would lose its tax exemption if it operated a funeral home. However, rather than prohibit any affiliation between a tax-exempt cemetery and a funeral home, the IRS subsequently outlined conditions whereby such a cemetery could affiliate with a funeral home by organizing the funeral home as a taxable subsidiary corporation and maintaining an “arm’s-length” relationship between the two entities.
However, the IRS also determined that the tax-exempt status of a cemetery was not affected by its sale of monuments, markers, vaults, and flowers when used solely in the cemetery and when the sales proceeds are used for the cemetery’s maintenance. A logical argument can be made that the use of markers, monuments, and vaults are sufficiently intrinsic to the operation of a cemetery that the IRS determination seems only common sense. As late as 1998, however, New York State enacted Chapter 560 that prohibits nonprofit cemeteries (the only type of cemetery entity permitted under New York law) from selling markers, memorials, and monuments, except flat bronze markers. Similar restrictions exist under laws in New Jersey and some New England states. In addition, New York is one of about 10 states that prohibit or restrict an affiliation between a cemetery and a funeral home. Although some state laws merely restrict locating a funeral home on cemetery land, the prohibition under Wisconsin law is perhaps the most sweeping in that the statute outlaws common ownership of a cemetery and a funeral home, even if they do not operate in conjunction with each other and are located hundreds of miles apart.
The rationale offered to justify these restrictive laws focuses on a rather paternalistic need to “protect the public” from potential monopolies, although observers have questioned how the operation of a funeral home in conjunction with a cemetery creates a monopoly in competition. The monopoly argument is similar to suggesting that a gas station selling gasoline and repairing cars is creating a monopoly. Perhaps the most perceptive analysis of this “anticombination” theory was provided by Federal Trade Commission (FTC) staff in commenting on the Michigan law.
Prohibiting joint ownership could prevent some efficient combinations of business aspects of the two operations that might result in lower prices to consumers. For example, cemetery and funeral entities might be able to realize administrative and overhead economies through joint facilities … Buyers could make decisions about burial and funeral service in one location, saving expense and perhaps easing personal concerns during a particularly stressful period. Admitting into the funeral and cemetery industries new business formats that Michigan’s law now prohibits could have a generally positive effect on competition. These innovations might afford consumers a wider selection of services and costs.
Commenting on the existing Wisconsin “anticombo” law in 1993, FTC staff observed,
Wisconsin now prohibits a funeral director from operating a mortuary or funeral establishment located within the confines of, or connected with, any cemetery. Wisconsin also prohibits a funeral director or employee from directly or indirectly receiving or accepting any commission, fee, remuneration or benefit from a cemetery in connection with the sale or transfer of any cemetery lot, or from acting, directly or indirectly, as a broker or jobber of any cemetery property or interest.
FTC staff also commented on proposed amendments that eventually were enacted that prohibit any relationship between a cemetery and a funeral home. FTC staff warned that the proposal
would tend to restrict competition in the funeral home and cemetery industries … By allowing joint ownership or operation, the alternative proposal (to repeal existing prohibitions) would remove barriers to new business formats and may promote efficiencies that ultimately could result in lower prices to consumers.
Ironically, despite the continuing restrictions in some state laws, combined cemetery funeral home operations have been thriving in most states for decades with no apparent anticompetitive or monopolistic consequences. Thus it appears that “combinations” are controversial only in the states where they are not permitted, which suggests that these laws were advocated and maintained by entrenched interests to keep out new competitors from their market areas.
Contract Disclosure Provisions
Depending on the circumstances under which a contract for cemetery property, merchandise, and services is made, certain key disclosures should be brought to the attention of the purchaser. Whether an agreement has been made “at need” at the time a death has occurred or “pre-need” in advance of any imminent death, there is a potential for misunderstandings concerning the items purchased or intended to be purchased. For example, many cemeteries do not sell grave “opening and closing” services until the time of burial. Consumers purchasing in advance of need may believe that they have paid for “everything” when in fact they have paid for everything they purchased, but they have never purchased the opening and closing service. To date, there has been limited statutory guidance concerning specific provisions to include in contracts, especially in prepaid agreements.
The ICFA model guideline for “Prepaid Contracts” lists a number of principles to provide for meaningful disclosures in sales agreements, including the identification of cancellation and refund policies. Some disclosures have been codified in various state laws, and others are advocated as recommended business practices. The following excerpts list some of the primary disclosures in the model guideline:
Prepaid contracts should be written in plain English, and clearly state the merchandise and services that purchasers are buying and their prices. Use of legal or industry-specific jargon should be avoided, to the extent possible.
Charges should be itemized. The itemization should be in greater detail than just a recitation of prices. It should include a complete description of the services to be rendered and an unambiguous description of the merchandise to be delivered.
When prices of merchandise or services to be delivered in the future are not guaranteed, or an additional payment may be required in the future, a statement to that effect should be included in the prepaid contract and initialed by the purchaser.
There should be an explanation of how the purchaser’s funds will be protected to assure the seller’s performance in compliance with the prevailing prepaid contract law.
The contract must clearly state what happens if merchandise is not available at delivery time and substitution is necessary. In the event of a manufacturer’s discontinuation of a model, the description of the merchandise should be sufficiently complete for the authorizing agent to make a decision, based upon objective criteria, about the comparability of a needed substitution.
No substitution should be possible without the consent of the purchaser, or upon his or her death, the authorizing agent who lawfully controls the final disposition of the remains. However, the authorizing agent should not be allowed to initiate a material change which is inconsistent with the purchaser’s wishes, for the purpose of obtaining a refund, based upon the statutory requirement to adhere to the directions of the deceased. In this regard, the prepaid contract could contain a provision, which is initialed by the purchaser, either prohibiting any changes, or alternatively, specifying what instructions could be modified and by whom.
The seller may enter into a written agreement with the purchaser of a prepaid contract providing for payment of a finance charge on any amount due to the seller. The prepaid contract should conform to all other applicable state and federal statutes and regulations governing imposition of finance charges.
There should be a clear disclosure of any applicable law allowing for cancellation by the purchaser within the first few days of entering into a prepaid contract. The prepaid contract should clearly explain whether and under what terms the prepaid contract may be canceled after that initial cancellation period, if any.
Regulatory authorities should be encouraged to allow placement of all required disclosures together as an addendum to the prepaid contract, rather than requiring disclosures on the face of the prepaid contract. The following should be required when an addendum to the prepaid contract is allowed:
- The seller should be required to obtain a signature of the purchaser on the addendum, in addition to prepaid contract;
- The addendum should be in an easy-to-read format with pages the same size as the prepaid contract;
- The type size should be no smaller than 10 points and the printing should be high contrast for easy readability;
- Subheadings to identify groupings or types of disclosures should be provided for clarity.
The purchaser of a prepaid contract may irrevocably waive and renounce his or her right to cancel the prepaid contract. This is essential to purchasers trying to satisfy eligibility requirements for Medicaid and Supplemental Security Income benefits. The waiver and renunciation may be included as a provision of the prepaid contract or made as an addendum, providing that it is signed by the purchaser. The irrevocability of the prepaid contract should not affect the right of the purchaser to change the provider of the prepaid contract.
Copies of the prepaid contract and supplemental material, such as information on credit life insurance and transfer or exchange plans, should be provided to the purchaser at the time of the preneed sale.
Copies of the prepaid contract and at need documentation should be provided to the authorizing agent at the time of making at need arrangements to ensure that the merchandise and services match those specified in the prepaid contract. A list of items substituted should be a written part of the at need documentation.
Copies of all prepaid contracts and at need documentation should be retained by the seller for a specified period of time after performance.
Upon performance, or cancellation of a prepaid contract by mutual agreement between the seller and the purchaser, or upon unilateral cancellation by the seller by reason of default of the purchaser, or other valid cancellation by reason of transfer to another provider, or otherwise, the seller should submit sufficient documentation to the trustee to enable withdrawal of all funds contributed, and all earnings attributable to the prepaid contract. (ICFA 1998b)
Government Regulatory Agencies
As stated at the outset, cemeteries are specifically regulated by state governments although they must comply with many federal statutes and regulations concerning general operational issues. For example, sales made in consumers’ homes or anywhere outside the seller’s main office automatically have a 3-day “cooling-off” period under a FTC rule allowing the purchaser to cancel and receive a full refund. The FTC also enforces a trade regulation that focuses primarily on funeral homes by requiring written price disclosures, authorization prior to embalming, and other safeguards. Although the “Funeral Rule” does not extend to cemeteries, the FTC is authorized to investigate cemeteries as well as other businesses alleged to be engaging in unfair or deceptive sales practices through Section 5 of the FTC Act.22 Other FTC-enforced laws, trade regulations, and guides that apply to cemeteries include the Fair Debt Collection Practices Act, the Telemarketing Sales Rule, Preservation of Consumers’ Claims, Bait Advertising Guide, Debt Collection Guide, Deceptive Advertising of Guarantees, and Deceptive Pricing.
On the state level, there are at least 41 states with one or more government agencies having regulatory oversight of cemeteries within a given state. Sometimes the agencies are called “cemetery boards,” but in many cases they are divisions of consumer protection agencies, offices of the attorney general, real estate commissions, and banking departments. State governments seem reluctant to initiate new agencies due to budgetary constraints, so cemetery oversight tends to be assigned to existing departments involved with related issues. In recent years, state cemetery regulators have formed their own association to facilitate discussions of common concerns and emerging issues. The organization is known as the North American Cemetery Regulators Association (NACRA) and usually meets once or twice a year. Industry speakers and trade association leaders are frequently invited to attend NACRA meetings to participate in discussions, and the organization has helped foster a better understanding between the various government agencies and the businesses they regulate.
An important emerging issue concerns the balance between the state and federal regulation of cemeteries. That is, whether federal government oversight should be increased to specifically regulate various aspects of cemetery operation. Factors influencing this issue include the aging of the huge “baby boomer” population and the large number of deaths expected in future years, the popularity of prepaid arrangements, and the mobility of consumers. At present, a few members of Congress have voiced concerns that the state government oversight of cemeteries may be insufficient and an overall approach to regulation through federal statutes may be preferable. Because cemetery sales and related activities are essentially local in nature and community based, however, I believe that cemeteries are more effectively and efficiently regulated at the state level. It should also be noted that any potential increase in the federal oversight of cemeteries would not occur in lieu of state regulation, but in addition to it. Thus a dual layer of administration would be created that would be duplicative, confusing to industry members and consumers alike, and ultimately counterproductive. Instead, efforts should be made to foster uniform state laws, increase the enforcement of those laws, and limit federal involvement to potential funding of state agencies responsible for oversight.
A threshold requirement for the operation of a cemetery involves zoning. Land dedicated to cemetery use cannot be easily “undedicated,” especially after burials have occurred. Thus the operation of a cemetery is a long-term commitment, sometimes summarized by the observation, “Cemeteries are the only businesses that service what they sell forever.” Zoning requirements can vary widely from one jurisdiction to another, even within a given state. For example, one municipality may allow a cemetery under its general zoning uses together with farming and light industry. A neighboring jurisdiction may not allow a cemetery to be established unless a “special use” permit is granted whereby the zoning board approves an exception to the zoning ordinance to allow a cemetery (Llewellyn 1998).
The media occasionally raise the issue of ground water pollution due to burials, but documented studies indicate that such concerns are unwarranted. One study concluded that traces of formaldehyde, commonly used for embalming human remains, were so minute in the water samples that they could have been occurring naturally. Legislation does not specially address engineering issues, although a few states mandate minimum burial depth levels for purposes of avoiding soil erosion. Cemeteries can be dedicated exclusively for use by specific religious denominations, fraternal orders, and veterans of the armed forces. Historically, prior to the federal civil rights laws of the 1960s, some cemeteries in the southern states prohibited the burial of African Americans in white cemeteries. One form of segregation that is still upheld today is the prohibition of burying deceased animals with human remains. Many cemeteries will provide a pet cemetery section adjacent to the “human” sections or operate a separate pet cemetery in another location. However, a reasonably well-drafted contract for cemetery property will specify that the burial rights acquired are limited to the interment of human remains.
American jurisprudence has long favored the concept of “rest in peace.” In other words, a grave is meant to be permanent in nature and should not be disturbed unless there exists a compelling reason for doing so. Exhumations generally require a court order and must be justified by a reasonable cause, such as suspected foul play in the death of the decedent or a government condemnation proceeding where a section or an entire cemetery is moved to a new location to make way for a highway. Many states permit cemeteries to disinter without a court order if the purpose is limited to immediate reburial in the same cemetery. The most common reason for such reburials is to correct a burial in the wrong grave. In addition, family members, typically surviving spouses, may seek a disinterment if they are relocating out of the area. Reburial at a cemetery near the new location will enable a surviving spouse to continue visiting the grave site. By contrast, cemeteries in many European countries have traditionally leased graves for a finite time period, usually 20 years. At the end of that time, if the lease is not renewed, the remains are disinterred, reburied in a mass grave, and the original grave is resold to a new lessee. So far, the American trend to recycle has not extended to graves.
To the casual observer, the management of a cemetery may seem as unchanging as the ocean tides. Changes in technology, societal customs, and even religious beliefs, however, have an impact on cemetery operations. The rise in the cremation rate, from 15% of deaths in 1987 to 25% in 2000 and projected at almost 40% by 2010, will become an important factor in cemetery operation. Most cremated remains continue to be interred in cemeteries, either in burial lots or columbarium niches that are similar to, but smaller than, mausoleum crypts. However, because the receptacles containing cremated remains, such as urns, require significantly less space than casketed remains, cemetery managers are finding that the increased cremation rate allows them to conserve land and extend the cemetery’s useful life for many more years than originally planned. In addition, cemeteries are establishing scatter gardens where cremated remains can be disbursed. Scatter gardens are an important new service that cemeteries provide to the public because the scattering of cremated remains at alternative sites favored by the public, such as beaches and public parks, is in fact illegal.
Recent waves of immigrants from Asian countries and the Middle East are bringing new funeral and burial customs to American cemeteries. Traditional regulations that restrict hours of visitation or prohibit loose objects from being placed on grave sites are being revised to accommodate ancient rituals that are new in this country. Generational Americans, especially the baby boomers, seem to be rethinking the meaning of traditional forms of burial and memorialization. Having gained experience as cemetery consumers through handling the burial arrangements of their parents, many baby boomers are planning their own arrangements as one of several end-of-life issues. At this point, early indications suggest that the boomer generation may prefer rituals that have less religious significance than in the past but that instead celebrate the life lived rather than commemorate a death.
Today, an increasing number of cemeteries help their customers make burial arrangements through fax and email, and arrange to “camcast” the services over an Internet site for the benefit of mourners who are unable to travel to the cemetery. Computer technology is also used to create “virtual memorial” sites where photos and personal reminiscences of the deceased can be viewed by family and friends from anywhere around the world. The rise of “Find-A-Grave” (www.findagrave.com) type information sites on the Internet is facilitating genealogical research and the location of cemeteries where family members and historical personages are interred. Therefore, it is not unreasonable to suggest that cemeteries are evolving far beyond their traditional roles as charitable or governmental “depositories of the dead” into modern information centers and living memorials of an individual’s life and achievements.