BILL ANALYSIS
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|Hearing Date: April 30, 2001 |Bill No:SB |
| |542 |
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SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
Senator Liz Figueroa, Chair
Bill No: SB 542Author:Ortiz
As Introduced Fiscal:No
SUBJECT: Cemeteries.
SUMMARY: Allows unoccupied portions of family plots
located in private cemeteries to be sold and amends various
cemetery law definitions.
Existing law:
1)Provides for the licensing and regulation of private
cemeteries by the Cemetery and Funeral Bureau (Bureau)
within the Department of Consumer Affairs.
2)Defines a cemetery as six or more human bodies being
buried at one place. Also, defines cemetery as any one,
or a combination of more than one, of the following, in a
place used, or intended to be used, and dedicated, for
cemetery purposes: a burial park, for earth interments; a
mausoleum, for crypt or vault interments; a crematory, or
a crematory and columbarium, for cinerary interments.
3)Defines lot, plot, and interment plot as space in a
cemetery, used or intended to be used for the interment
of human remains.
4)Defines grave as a space of ground in a burial park,
used, or intended to be used, for burial.
5)Defines burial park to mean a tract of land for the
burial of human remains in the ground, used or intended
to be used, and dedicated, for cemetery purposes.
6)Defines interment as the disposition of human remains by
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entombment or burial in a cemetery or, in the case of
cremated remains, by inurnment, placement or burial in a
cemetery, or burial at sea.
7)Defines mausoleum as a structure or building for the
entombment of human remains in crypts or vaults in a
place used, or intended to be used, and dedicated, for
cemetery purposes.
8)Defines columbarium as a structure, room, or other space
in a building or structure containing niches for
inurnment of cremated human remains in a place used, or
intended to be used, and dedicated, for cemetery
purposes.
9)Defines disposition as the interment of human remains
within California, or the shipment outside of California,
for lawful interment or scattering elsewhere, including
release of remains.
10) Defines cemetery authority to include cemetery
associations, sole corporations, or other persons owning
or controlling cemetery lands or property.
11) Provides that all plots, the use of which has been
conveyed by deed as a separate plot, are divisible except
with the consent of the cemetery authority or as provided
by law.
12) Provides that if no interment is made in an interment
plot which has been transferred by deed to an owner, or
if all remains previously interred are lawfully removed,
upon the death of the owner, unless he has disposed of
the plot either in his/her will or by a written
declaration filed and recorded in the office of the
cemetery authority, the plot descends to the heirs of the
owner subject to the rights of interment of the decedent
and his/her surviving spouse.
13) Provides that whenever an interment of the remains of a
member or of a relative of a member of the family of the
owner or of the remains of the owner is made in a plot
transferred by deed to an owner and the owner dies
without making disposition of the plot either in his
will, or by a written declaration filed and recorded in
the office of the cemetery authority, the plot thereby
becomes inalienable and shall be held as the family plot
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of the owner.
14) Provides for burial rights and priorities in family
plots for next of kin.
15) Provides that a cemetery authority may take and hold
any plot conveyed to it by the plot owner so that it will
be inalienable, and interments shall be restricted to the
persons designated in the conveyance.
This bill:
1)Makes changes to the definitions used in the cemetery
business in that it amends and eliminates various
definitions.
2)Combines the statutes, which provide for a cemetery
authority's power to regulate the use, care, control,
management, restriction, and protections of the cemetery
land into one statutory section and repeal other sections
that duplicate the powers of the cemetery authority.
3)Creates an inalienable property right in a cemetery plot
that has been conveyed by deed as a family plot and would
prohibit the sale of any occupied portion of the family
plot.
4)Allows an heir to a family plot, where human remains are
contained in a portion of the family plot, to make the
unoccupied portion(s) of the plot available for sale as a
property interest and precludes the plot from becoming
inalienable by virtue of operation of law.
FISCAL EFFECT: Legislative Counsel has determined that
this is a non-fiscal bill.
COMMENTS:
1.Bill Intended to Allow Greater Flexibility With Family
Plots. According to information provided by the author,
the main purpose of the bill is to enable relatives to
sell unoccupied portions of family plots.
2.Alienability Clause and Measure Only Apply to Private
Cemeteries. The laws addressing family plots only apply
to private cemeteries, not public or religious
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cemeteries. There is an estimated 1,200 cemeteries in
California, 200 of which are private cemeteries.
Approximately 40% of individuals buried within California
are buried in private cemeteries. The Cemetery and
Funeral Bureau regulates private cemeteries.
3.Bill Reflects Research Conducted by the Capital Center
for Government Law and Policy. McGeorge School of Law's
Capital Center for Government Law and Policy (Capital
Center) was contacted in the Spring of 2000 by a family
service representative from East Lawn (Sacramento), who
described a potential problem with California's existing
cemetery law which makes family plots inalienable in
circumstances where the proscription against alienability
may create serious hardships upon the owner of the plots.
In particular, the East Lawn representative indicated
that he has clients who are in desperate need of money
but who are unable under current law to sell unoccupied
family plots to raise cash.
The Capital Center responded to this inquiry by assigning
two law students to research the problem and propose a
statutory solution. This bill reflects the Capital
Center's statutory solutions to the issues raised by the
East Lawn representative in addition to technical errors
in the cemetery law which were discovered by the law
students as part of their examination.
4.Alienability of Family Plots. The Capital Center's study
suggests a need to allow for the alienability of the
unoccupied portions of family plots. Under existing law,
the unoccupied portions of a family plot automatically
become inalienable if any portion of the plot is occupied
and the owner dies without making a specific disposition
of the plot.
The Capital Center's study suggests that existing law is
apparently based on the assumption that, absent specific
disposition of the plot or an expression of intent by the
owner, converting the plot into a family plot and making it
inalienable, thereby preserving it for future use by the
family, furthers the decedent's intent. According to the
study, the practical result today can be serious hardship on
the subsequent owner who will be legally unable to sell the
plot even though no future use of the plot is contemplated
(e.g., because other family members have moved across the
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country or because the family has split apart by divorce or
other falling out).
According to the Capital Center's study, when the
inalienability provision was enacted over 60 years ago, the
stability of the family and the relative difficulty of moving
across country may have suggested to the Legislature that the
decedent's intent would ordinarily have been to preserve the
family plot for the benefit of surviving family members.
However, in today's world, family breakups through divorce are
more common, and in light of the likelihood of employment
relocation and the relative ease of travel, families are no
longer remaining in the same geographic area for generations.
In light of these changed conditions, it may no longer be
reasonable to assume, absent an expression of intent, that the
decedent intended unoccupied portions of a family plot to
become inalienable.
Therefore, the Capital Center's study proposes to amend the
law so that unoccupied portions of a family plot remain
alienable. In addition, to ensure that an owner has the
opportunity to create an inalienable family plot, the study
proposes to amend the law, so that the purchaser of a plot
can, at the time of purchase, declare the plot to be a family
plot which shall thereby become inalienable. The Capital
Center believes the amendments (as proposed in this measure)
strike a better balance between the interest of a purchaser
and owner in creating a permanent resting place for family
members, and the interests of a surviving owner of a plot in
situations where the original purchaser expressed no intent
regarding alienability of unoccupied portions of a series of
adjacent plots.
5.Should the Living or the Deceased Control - the Issue of
Whether the Alienabilty Clause should Be Applied
Prospectively or Retroactively? As drafted, the bill is
retroactive and therefore, would allow next of kin to
sell unoccupied portions of family plots even though such
an action could be counter to the deceased owner's
wishes. It should be noted that there will not be any
relief for the people whose experiences were the impetus
for this bill, and what could be countless others, unless
this measure is retroactive.
In their letter, SCI California Funeral Services (SCI)
states that while they have no opinion on whether the
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Legislature should change existing law on a prospective
basis, they oppose the measure because it could be
retroactive and apply to family plots that were
established by decedents as long as 60 years ago. The
SCI proposes that the bill be amended so that its
application is prospective only. The SCI believes that
making the bill prospective would enable new purchasers
of family plots to be aware of the change in law so that
they could make the determination of whether the family
plot should be alienable or not. Additionally, they
believe that the decedent's intent would be to preserve
the family plot for the benefit of his or her surviving
members and the State of California should protect that
intent. Moreover, they believe that if applied
retroactively, this bill would violate the California
Constitution, which provides that no law impairing the
obligation of contracts may be passed. Therefore, SCI
argues that this bill should be made applicable only on a
prospective basis.
In their letter, the California Funeral Directors
Association (CFDA) states that they will support the
author's efforts to delineate a new threshold for
declaring the inalienability of a plot as long as the law
is prospective and not retroactive.
This issue seems to boil down to a question of whether
the deceased should control land where their true
intentions are unclear.
6.Technical Corrections to California's Cemetery Law.
According to the Capital Center's study, a strict reading
of cemetery law's definitions at times leads the reader
through a circular maze of language. They point out that
some of the errors date back to 1939 when the cemetery
law was re-codified in its present form. Other errors
were introduced in 1993 when the cemetery law was amended
for the purpose of imposing additional regulations on
funeral directors and cemeteries with respect to
cremation. This measure attempts to clean up these
definitions.
In their letter, the CFDA state that while some of the
definitional changes are merely the removal of archaic
language, there are also some significant changes that
have real world impact. The CFDA state that they believe
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that they can work with the author and the Committee to
reach agreement on the definitions. They ask that the
bill be moved with the caveat that if the parties do not
reach agreement on the definitions, that they be dealt
with in a separate bill or in the Joint Legislative
Sunset Review Committee's review of the Bureau that is
scheduled to take place later this year.
7.Should the Measure Include A Disclosure Requirement?
This bill would allow an owner to designate a plot as a
family plot at the time of purchase. The author may want
to consider whether the cemetery should be required to
explain to the owner the potential ramifications of such
a designation.
8.Similar Legislation - AB 322. AB 322 (Bill Campbell)
also addresses the issue of the inalienability of the
family plot. It provides that where the record owner of
a cemetery plot dies without making disposition of the
plot in his or her will or by a written declaration filed
and recorded in the office of the cemetery authority, the
plot shall pass according to the laws of intestate
succession. AB 322 passed out of the Assembly Judiciary
Committee on April 17, 2001.
SUPPORT AND OPPOSITION:
Support:None reported to the Committee as of April 18,
2001.
Support if Amended: California Funeral Directors
Association
Oppose Unless Amended: SCI California Funeral Services
Interment Association of California
Consultant: Kristin J. Triepke