BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 542|
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UNFINISHED BUSINESS
Bill No: SB 542
Author: Ortiz (D)
Amended: 9/10/01
Vote: 21
SENATE BUSINESS & PROFESSIONS COMMITTEE : 4-0, 4/30/01
AYES: Figueroa, Johannessen, Murray, Polanco
SENATE FLOOR : 29-1, 5/29/01
AYES: Alarcon, Alpert, Battin, Bowen, Brulte, Burton,
Costa, Escutia, Figueroa, Haynes, Johannessen, Karnette,
Knight, Kuehl, Margett, McClintock, McPherson, Monteith,
Oller, Ortiz, Peace, Perata, Polanco, Poochigian, Romero,
Scott, Sher, Speier, Torlakson
NOES: Ackerman
ASSEMBLY FLOOR : Not available
SUBJECT : Cemeteries
SOURCE : Author
DIGEST : This bill allows unoccupied portions of family
plots located in private cemeteries to be sold and amends
various cemetery law definitions.
Assembly amendments :
1. Specify that, as of January 1, 2002, any family plot
that had been inalienable shall no longer be
inalienable, and instead pass according to laws of
CONTINUED
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intestate succession.
2. Provide that any unused portion of a family plot made
alienable or transferable pursuant to provisions of this
bill shall not be sold, transferred or donated unless
all persons entitled to interment in the plot are
deceased or have expressly waived in writing the right
to be interred in the plot.
3. Provide that an affidavit, under specified conditions,
shall constitute an authorization to sell unoccupied
portions of a plot.
ANALYSIS : This bill:
1. Allows an heir to a family plot, where human remains are
presently buried, to make the unoccupied portions
available for sale, and precludes the plot from
necessarily being inalienable or nontransferable.
2. Specifies that when an owner passes away without making
a disposition regarding his or her plot, either in a
will or by written authority, the unoccupied portions of
the plot shall pass according to the laws of intestate
succession.
3. Specifies that, as of January 1, 2002, any family plot
that had been inalienable shall no longer be
inalienable, and instead pass according to laws of
intestate succession.
4. Provides that any unused portion of a family plot made
alienable or transferable pursuant to provisions of this
bill shall not be sold, transferred or donated unless
all persons entitled to interment in the plot are
deceased or have expressly waived in writing the right
to be interred in the plot.
5. Provides that an affidavit, under specified conditions,
shall constitute an authorization to sell unoccupied
portions of a plot.
6. Makes definitional, technical and clarifying changes to
existing law.
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Comments
According to the author, the purpose of this bill is to
allow relatives to sell unoccupied portions of their family
cemetery plot. The laws associated with family plots apply
only to private cemeteries. Public and religious
cemeteries are exempt from current law. There are an
estimated 1,200 cemeteries in the state; 200 are private
cemeteries. Approximately 40% of the remains buried in the
state are buried in private cemeteries. The Bureau
regulates private cemeteries.
According to the author, the McGeorge School of Law Capital
Center for Government Law and Policy (Capitol Center) was
contacted by a family service representative from the East
Lawn Funeral Services and Cemetery in Sacramento (East
Lawn). The individual described a problem with the state's
existing cemetery law that makes family plots inalienable
in circumstances where the proscription against
alienability may create serious hardships on the owner of a
plot. The East Lawn representative indicated that he has
clients who are in need of extra money, but they are not
able to sell their family plot because current law
prohibits them from making the sale. The Capital Center's
proposed solution is to amend current law so that
unoccupied portions of family plots can be alienable.
According to the author, this bill is retroactive and
therefore would allow next of kin to sell unoccupied
portions of a family plot even though such an action could
be counter to the deceased owner's wishes. It should be
noted that there would be no relief for the people whose
experiences were the impetus for this bill unless the bill
is retroactive.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 9/13/01)
California Funeral Directors Association
Interment Association of California
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ARGUMENTS IN SUPPORT : According to information
provided by the author, the main purpose of the bill
is to enable relatives to sell unoccupied portions of
family plots.
According to the author's office, the Capital Center's
study (see above) 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 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
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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.
CP:sl 9/13/01 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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