Picture yourself walking through a peaceful cemetery at dawn, light filtering through the leafy canopies of ancient oaks onto an array of crumbling carved gravestones. In the distance you see a small mausoleum fronted, jarringly, with a white sign saying FOR SALE BY OWNER.
That’s probably not going to happen, at least in Texas where cemetery plots are controlled by a confusing mixture of state law and local rules.
When you purchase a cemetery plot, you receive the “right of sepulture,” which is your exclusive right to have your remains buried in a particular location. Your plot is presumed to be your separate property. A “plot” is defined to include a grave or adjoining graves, a crypt or adjoining crypt, and a niche or adjoining niches.
Purchasing your plot is the easy part; getting rid of it is much harder.
Part of the difficulty is Texas community property laws and spousal rights. If you are married, then during your marriage and upon your death, your spouse has a vested right to be buried in your plot. If your spouse’s remains are buried somewhere else, then your spouse’s vested right is terminated. While both of you are alive, you cannot sell your plot unless your spouse consents.
If you are interred in one of the spaces in the plot, the exclusive right of sepulture in the remaining places may be conveyed only by a specific reference that you made in your will, through a document on file with the cemetery organization, by your surviving spouse, or by your heirs at law. If you are interred elsewhere and did not make a specific disposition of your plot, the right of sepulture in at least one space is reserved for the surviving spouse and any remaining spaces pass to the decedent’s heirs at law.
What if you purchase the plot and then let it sit without anyone being interred? If a grave in a private cemetery is unoccupied and is abandoned for failure to maintain or pay assessments for maintenance for ten years, the ownership or right of sepulture reverts to the cemetery on a finding by a court of abandonment. You and any successor owners are entitled to rebut the presumption of abandonment.
As for selling the plot, you are constrained by the statutes and the restrictions imposed by the corporation that operates the cemetery. The restrictions can be found in the certificate of ownership, quitclaim agreement, or other document of conveyance. The corporation can require a certain form for the conveyance. The form must be signed by the seller, purchaser and broker (if any), and then filed and recorded in the cemetery organization’s office.
If you are selling your plot, then all of the owners of the plot must participate in the sale. You can sell the plot yourself, go through a website, or use a cemetery broker. Some cemetery organizations will repurchase plots and act as clearing houses for plot sales.
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Virginia Hammerle is a licensed Texas attorney. Her practice includes estate planning, litigation, guardianship and probate law. Visit hammerle.com for her blog and newsletter sign-up. This column does not constitute legal advice.