BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1179 (Vidak)
Version: March 31, 2016
Hearing Date: April 19, 2016
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Public cemetery districts: interment rights
DESCRIPTION
This bill would establish within a public cemetery district a
personal property right of interment held by the owner to use or
control the use of a plot, determine the number and identity of
any person or persons to be interred in the plot, and control
the placement, design, wording, and removal of markers, as
specified. This bill would require the owner of an interment
right, at the time of purchase, to designate a successor owner
or owners in a signed writing deposited with the cemetery
district, as specified. This bill would also provide the order
of succession that would apply, if the owner dies without making
that written designation or a valid and enforceable disposition
of the interment right in a testamentary device.
This bill would establish the circumstances and process under
which human remains may be disinterred, reinterred, or removed
from a public cemetery district after interment, and would
specify the records required to be maintained by the public
cemetery district and the person removing and relocating the
human remains.
BACKGROUND
Since 1909, public cemetery districts have provided California
communities with the means to publicly finance the ownership,
improvement, expansion, and operation of public cemeteries and
provide respectful, cost-effective interments for district
residents. California has over 250 public cemetery districts,
which are governed by the Public Cemetery District Law (PCDL).
The PCDL specifies the procedures for the formation and
operation of public cemetery districts, procedures for the
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selection of the district board of trustees, and the powers and
duties of the board.
SB 341 (Committee on Local Government, Chapter 57, Statutes of
2003) modernized and recodified the Public Cemetery District
Law. Although that law explained how cemetery districts would
manage interment rights, the PCDL did not define the term.
Accordingly, SB 113 (Committee on Local Government, Chapter 332,
Statutes of 2009), among other things, adopted a statutory
definition of "interment right" within the PCDL to mean the use
or control of the use of a plot, niche, or other space, for the
interment of human remains. Subsequently, SB 184 (Committee on
Governance and Finance, Ch. 210, Stats. 2013), among other
things, revised the definition of "family member" to include
"domestic partner," as specified, in the PCDL.
This bill would establish an interment right as personal
property, require the interment right owner to designate a
successor, and, in the event a successor owner has not been
otherwise named, establish a procedure for the succession of an
interment right in public cemetery districts. This bill would
also provide immunity from liability to a district or district
employee or trustee for claims, losses, or damages resulting
from transferring an interment right, as specified, and provide
the circumstances and process under which human remains may be
disinterred, reinterred, or removed from a public cemetery
district after interment, and would specify the records required
to be maintained by the public cemetery district and the person
removing and relocating the human remains.
CHANGES TO EXISTING LAW
Existing law , the PCDL, provides for the operation of interment
services and establishment of public cemetery districts.
(Health & Saf. Code Sec. 9001 et seq.)
Existing law authorizes a board of trustees of a public cemetery
district to establish policies for the operation of the district
and requires the board of trustees to provide for the faithful
implementation of those policies which is the responsibility of
the employees of the district. (Health & Saf. Code Sec. 9020.)
Existing law authorizes a public cemetery district to exercise
all rights and powers, expressed or implied, necessary to carry
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out the purposes and intent of the law, including adopting
ordinances and adopting and enforcing rules and regulations for
the administration, maintenance, operation, and use of
cemeteries. (Health & Saf. Code Sec. 9041(j), (k).)
Existing law defines "lot," "plot," and "interment plot" to mean
space in a cemetery, used or intended to be used for the
interment of human remains, and such terms include and apply to
one or more than one adjoining graves, one or more than one
adjoining crypts or vaults, or one or more than one adjoining
niches. (Health & Saf. Code Sec. 7022.)
Existing law defines "grave" to mean a space of earth in a
burial park, used, or intended to be used, for the disposition
of human remains (Health & Saf. Code Sec. 7014), "crypt" or
"vault" means a space in a mausoleum of sufficient size, used or
intended to be used, to entomb uncremated human remains (Health
& Saf. Code Sec. 7015), and "niche" means a space in a
columbarium used, or intended to be used, for the placement of
cremated human remains (Health & Saf. Code Sec. 7016).
Existing law defines "interment right" to mean the right to use
or control the use of a plot, niche, or other space, for the
interment of human remains. (Health & Saf. Code Sec. 9002(h).)
Existing law establishes that, in private cemeteries, all plots
conveyed to individuals are presumed to be the sole and separate
property of the owner named in the instrument of conveyance.
(Health & Saf. Code Sec. 8600.)
Existing law provides that the spouse of an owner of any plot in
a private cemetery containing more than one interment space has
a vested right of interment of his remains in the plot and any
person thereafter becoming the spouse of the owner has a vested
right of interment of his remains in the plot if more than one
interment space is unoccupied at the time the person becomes the
spouse of the owner. (Health & Saf. Code Sec. 8601.)
Existing law provides that if no interment is made in an
interment plot in a private cemetery which has been transferred
by deed or certificate of ownership to an individual 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 will by a specific devise or by a written
declaration filed and recorded in the office of the cemetery
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authority, the plot descends to the heirs at law of the owner
subject to the rights of interment of the decedent and his
surviving spouse. (Health & Saf. Code Sec. 8603.)
Existing law provides that an affidavit by a person having
knowledge of the facts setting forth the fact of the death of
the owner and the name of the person or persons entitled to the
use of the private cemetery plot is complete authorization to
the cemetery authority to permit the use of the unoccupied
portions of the plot by the person entitled to the use of it.
(Health & Saf. Code Sec. 8605.)
Existing law provides that if no parent or child survives, the
right of interment in a private cemetery plot goes in the order
of death first, to the spouse of any child of the record owner
and second, in the order of death to the next heirs at law of
the owner or the spouse of any heir at law. (Health & Saf. Code
Sec. 8652.)
Existing law provides that any surviving spouse, parent, child
or heir who has a right of interment in a private cemetery
family plot may waive such right in favor of any other relative,
or spouse of a relative of either the deceased owner or of his
spouse, and upon such waiver the remains of the person in whose
favor the waiver is made may be interred in the plot. (Health &
Saf. Code Sec. 8653.)
This bill would define "interment right" to mean rights held by
the owner to use or control the use of a plot for the interment
of human remains, including both of the following rights:
to determine the number and identity of any person or persons
to be interred in the plot within a cemetery in conformance
with all applicable regulations adopted by the cemetery
district; and
to control the placement, design, wording, and removal of
memorial markers in compliance with all applicable regulations
adopted by the cemetery district.
This bill would establish that an interment right is a form of
personal property but would not include the right for
disinterment of human remains except on consent of the cemetery
district and the written consent of the surviving spouse, child,
parent, or sibling, in that order of priority.
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This bill would not apply to, or prohibit, the removal of
remains from one plot to another in the same cemetery or the
removal of remains by a cemetery district upon the written order
of any of the following: (1) the superior court of the county
in which the cemetery is located; (2) the coroner having
jurisdiction of the location of the cemetery; or (3) the health
department having jurisdiction of the cemetery.
This bill would require the cemetery district to maintain a
duplicate copy of that written order and a true and correct
record of a removal of remains, supplied by the person making
the removal, as specified, that includes all of the following:
the date the remains were removed;
the name and the age at death of the person whose remains were
removed if available;
the cemetery and plot from which the remains were removed; and
if the removed remains are reinterred, the plot number,
cemetery name, and location to which the remains were
reinterred;
if the removed remains are disposed of other than by being
reinterred, a record of the alternate disposition; or
if the removed remains are reinterred at the cemetery, the
date of reinterment.
This bill would provide that an interment right is the sole and
separate property of the person listed as the owner in the
records of the cemetery district, subject to any written
designation to the contrary signed by the owner and deposited
with the cemetery district, or pursuant to a valid will or
trust, or as directed by a superior court of competent
jurisdiction in a probate proceeding.
This bill would authorize the owner of record of an interment
right to designate in writing the person or persons, other than
the owner of record, who may be interred in the plot to which
the owner holds the interment right.
This bill , at the time of purchase, would require the owner of
an interment right to designate a successor owner or owners of
the interment right in a signed written designation deposited
with the district if those successors are qualified to own
interment rights in the district.
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This bill would require the use of an interment right
transferred from the owner to a successor through written
designation to be made in compliance with applicable provisions
of state and local law, and of applicable requirements or
policies established by the district board of trustees.
This bill would provide that if the owner of an interment right
dies without making a valid and enforceable disposition of the
interment right in a testamentary device, or by a written
designation, the successor to the interment right would be
determined as directed by a superior court of competent
jurisdiction in a probate proceeding or pursuant to priority
order of succession as follows:
to the competent surviving spouse or registered domestic
partner;
to either a sole surviving competent adult child of the
deceased owner, or, if there is more than one competent adult
child, the majority of the surviving competent adult children;
however, less than the majority of the surviving competent
adult children would be vested with the interment right if
they have used reasonable effort to notify all other surviving
competent adult children of their instructions and are not
aware of any opposition to those instructions by any surviving
competent adult children;
to the surviving competent parent or parents of the deceased
owner; if one surviving competent parent is absent, the
remaining competent parent would be vested with the interment
right after reasonable efforts have been unsuccessful in
locating the absent surviving competent parent;
either to the sole surviving competent adult sibling of the
deceased owner, or, if there is more than one surviving
competent adult sibling, then to the majority of the surviving
competent adult siblings; however, less than the majority of
competent adult siblings of the deceased owner would have the
interment right if they have used reasonable efforts to notify
all other surviving competent adult siblings of their
instructions and are not aware of any opposition to those
instructions by any surviving competent adult sibling;
if no spouse, child, parent, or sibling survives, to the
spouse of any child of the deceased owner; and
to the next heirs at law of the owner or the spouse of any
heir at law.
This bill would authorize any surviving spouse, domestic
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partner, child, or heir who has a right of interment as a
successor owner to waive such right in favor of any other
relative, or spouse of a relative of the deceased owner.
This bill would define "adult" to mean an individual who has
attained 18 years of age and "child" to mean a natural or
adopted child, and provide that an individual is "competent" if
he or she has either not been declared incompetent by a court of
law or has been declared competent by a court of law following a
declaration of incompetence.
This bill would provide that when a public cemetery district
acts to transfer ownership rights or make an interment on the
basis of the affidavit, given under penalty of perjury, as
specified, the district, and any employee or trustee of the
district, would not be liable for any claims, losses, or damages
asserted in any action unless the district had actual knowledge
that the facts stated in writing are false.
This bill would require a person purporting to be the successor
owner of an internment right to execute a written affidavit
declaring, under penalty of perjury, all of the following: (1)
he or she is the person entitled to succeed to the interment
right; (2) he or she has exerted all reasonable efforts to find
other persons who may have an equal or higher claim to succeed
to the interment right; and (3) he or she is unaware, to the
best of his or her knowledge, of any opposition challenging his
or her right to succeed to the interment right.
This bill , upon the sale to a person of a plot in a public
cemetery district, would require the district to notify the
purchaser, in writing, of any interment rights, the succession
of ownership of the interment rights, and the district's duly
adopted policies, rules, and regulations governing the use,
sale, or other transfer of interment rights.
COMMENT
1. Stated need for the bill
The author writes:
Current law presently provides no direction, outside of
probate, to public cemeteries when it comes to the use of
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internment rights purchased by someone who has already passed
away without designating a successor.
Senate Bill 1179 requires internment right owners, at the time
of purchase, to designate successors. Additionally, the bill
will create a list of succession for the passing of this
internment right if the owner of an internment right had not
provided for a successor. This line of succession would be:
1. Spouse
2. Children
3. Parent
4. Sibling
5. Spouse of child
2. Creation of new personal property right
Existing law provides that an interment right is the right to
use or control the use of a plot, niche, or other space, for the
interment of human remains. (Health & Saf. Code Sec. 9002(h).)
In addition, Civil Code Section 802 establishes that burial
rights create an interest in real property. This bill, instead,
would create a personal property right of interment in a public
cemetery district plot.
According to the California Association of Public Cemeteries
(CAPC), sponsor, the real property right provided in Civil Code
Section 802 creates a "servitude," or an interest that "burdens"
real property owned by others. CAPC argues that interment
rights are, essentially, the same thing-servitudes or burdens on
land held in fee by the cemetery owner. CAPC notes that Civil
Code Section 802 itself, in describing these servitudes as
interests in real property, creates a quandary for real property
law in general. CAPC states that interests in real property
must be recorded to be enforceable, but if the right of
interment was actually recorded as real property, county
recorder offices would be inundated with millions of interment
rights. CAPC argues that it is important to have a system that
is actually manageable for cemeteries and families. As such,
CAPC believes that public cemetery burial rights should be
classified as personal property.
Notably, Civil Code Section 802 provides the right to be
interred in a particular space on real property. Conversely,
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this bill would create a new personal property right in order to
facilitate the transfer of the right to use and control the use
of the plot and provide to public cemetery districts, interment
right owners, and their families clear successive rights to the
use and control of the plot.
The author offers the following amendment in Committee to
clarify the character of the right to use or control the plot as
personal property rather than sole and separate property.
Author's amendment :
On page 4, in line 36, strike and replace "sole and separate"
with "personal"
3. Providing for succession of interment right
If the owner of a private cemetery plot does not otherwise
provide in a specific testamentary devise or written
declaration, existing law provides for transfer of the ownership
of the right of interment in a private cemetery. (Health & Saf.
Code Sec. 8603.) A private cemetery plot descends to the heirs
at law of the owner subject to the rights of interment of the
decedent and his or her surviving spouse. (Id.) However, no
such statutory successive right of ownership is provided for
interment plots in a public cemetery district. This bill would
provide a list, in priority, of successive right to interment,
as follows:
the competent surviving spouse or registered domestic partner;
to either a sole surviving competent adult child of the
deceased owner, or, if there is more than one competent adult
child, the majority of the surviving competent adult children,
as specified;
to the surviving competent parent or parents of the deceased
owner, as specified;
either to the sole surviving competent adult sibling of the
deceased owner, or, if there is more than one surviving
competent adult sibling, then to the majority of the surviving
competent adult siblings, as specified;
if no spouse, child, parent, or sibling survives, to the
spouse of any child of the record owner; and
to the next heirs at law of the owner or the spouse of any
heir at law.
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According to CAPC, the absence of codified succession of
interment rights in public cemetery districts causes weekly
issues for public districts and unnecessary turmoil for families
at their absolute worst time. CAPC argues that this bill
provides clarity for quickly resolving sensitive matters for the
betterment of the community which public districts serve.
Notably, although the right of interment in a private cemetery
descends to the heirs at law, there is no statutory list of
succession. Further, private cemeteries maintain the right of
interment as the right of interment of the owner's remains. The
Public Cemetery District Law (PCDL), on the other hand, provides
that the right of interment is the right to use or control the
use of a plot for the interment of human remains.
Further, CAPC notes that there is one very important difference
between private and public cemeteries. Private cemeteries
operate for profit and rarely, if ever, permit additional
interments in a single grave. Public cemetery districts, on the
other hand, are required by law to provide cost-effective
interments for the residents and taxpayers of their districts.
For this reason, CAPC states, public cemetery districts provide
single and double-depth graves, and permit families to inter
from one to six additional cremains, in addition to the
full-body burials in a grave or in multiple cremains in ground
plots. CAPC argues that if this bill modeled the private
cemetery provisions for succession, many cases would have to go
through probate court because very few people list interment
rights as property in their wills or trusts. CAPC argues that
leaving the Public Cemetery District Law silent rather than
providing a specific list of succession would be an inefficient
use of cemetery, family, and court resources, and absent the
guidelines provided in this bill or through a court order,
public cemetery districts would have no way to determine who are
the "heirs at law."
Further, CAPC argues that the "heirs at law" remedy frequently
conflicts with the statute directing successive rights and
duties to take possession of the decedent's remains. As a
consequence, if a grave already has remains interred therein,
CAPC states that future decisions are not only property issues,
but issues concerning the control of existing interred remains.
CAPC states that this bill recognizes that, in most cases, the
power to use a grave should be consistent with the power to
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control remains. Accordingly, this bill uses the list of
successive rights and duties to take possession of the
decedent's remains (see Health & Saf. Code Sec. 7100), which is
substantially similar to the list of intestate succession
provided for the inheritance of the decedent's property if the
decedent died without creating a will (see Prob. Code Sec.
6402).
It is important to note that the PCDL provides restrictions on
the interment of a nonresident in the public cemetery district.
However, this bill creates a new personal property right to use
or control the use of a plot, which could be designated to a
successor owner living outside of the public cemetery district.
The bill would authorize transfer of the plot by the owner to a
successor only if the successor is qualified under the bill to
own interment rights in the district. This provision, if left
in the bill, could make the designation ineffective to transfer
the personal property right to the successor owner, which would
frustrate the purpose of the bill in clarifying successive
rights, as well as the intent of the plot owner to transfer the
right to the person named in the designation. Accordingly, the
author offers the following amendment in Committee to remove the
limitation on designation of the successor owner:
Author's amendment :
On page 5, in line 9, strike "if" and strike lines 10 and 11.
4. Immunity from liability
This bill would provide a public cemetery district and its
employees or trustees immunity from liability for any claims,
losses, or damages when a public cemetery district acts to
transfer ownership rights or make an interment on the basis of
an affidavit, given under penalty of perjury, delivered to the
district by a person purporting to be the successive owner of
the right to interment. This immunity would not be available if
the district or its employees or trustees had actual knowledge
that the facts stated in the affidavit are false.
CAPC argues that this immunity is necessary to protect public
cemetery districts from lawsuits and claims by family members
who feel their rights were not protected. For each interment,
the public cemetery district must take reasonable steps to make
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sure that the person making the arrangements has the right to do
so. CAPC asserts that public cemetery districts are not
investigators and have no powers or resources to investigate
whether the person making the interment arrangements is, indeed,
the only child or whether he or she has multiple siblings, all
of who might have rights. As such, cemeteries act on the basis
of a declaration that the person actually has the power under
the law to control both the remains and the right of interment
in the plot.
Further, CAPC asserts that few of the 200 plus public cemetery
districts have a week go by without dealing with a family
dispute of some sort. In fact, CAPC states that family disputes
are very common. CAPC argues that accepting and acting upon
such declarations is reasonable and efficient, and if other
family members have a complaint about it, they could seek
recourse against the person making the false declaration-not the
District or its employees. Additionally, CAPC notes that public
cemetery districts, in large part, have very few resources and
are caught between limited tax revenues and the legislative
directive to provide "cost effective" burial services for their
residents and taxpayers.
Ideally, the passage of the right to interment is specified in a
testamentary document or provided to the public cemetery
district in a written designation. If no such document exists
to show the deceased owner's intent to transfer the right to
interment, this bill would authorize the public cemetery
district to rely on a written affidavit of a person representing
that he or she has the right to interment as a successor owner.
This bill would then provide immunity from liability for claims
resulting from the public cemetery district's reliance on the
affidavit.
Notably, the immunity in this bill is similar to the immunity
provided with respect to the disposition of human remains.
Under existing law, a cemetery authority or crematory may make
an interment or cremation of any remains upon the receipt of a
written authorization of a person representing himself or
herself to be a person having the right to control the
disposition of the remains pursuant to the statutory list of
succession. (Health & Saf. Code Sec. 7111.) That immunity
resolves problems that arise when the decedent did not make
formal burial arrangements, one family member claims the right
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and duty to take control of the remains, and, after the burial,
another family member disagrees with the interment.
Similarly, the immunity provided in this bill would resolve
problems that arise when a plot is not formally passed on via a
testamentary document, the owner of the interment right has
passed away, and the cemetery has very few days to make a
determination as to who has the right to use or control the use
of the plot for burial. Unless the public cemetery district or
its employees or trustees know that the facts stated in the
affidavit giving rise to the successive ownership are false,
this bill would provide that the public cemetery district and
its employees and trustees would not be liable for claims,
losses or damages.
Support : Altaville Cemetery District; California Special
Districts Association; Fair Oaks Cemetery District;
Gridley-Briggs Cemetery District; Kern County Cemetery District;
Lemoore Cemetery District; Los Banos Cemetery District; Oroville
Cemetery District; Public Cemetery Alliance; Roseville Public
Cemetery District; San Jacinto Valley Cemetery District; Sutter
Cemetery District; Williams Cemetery District; Wilmington
Cemetery District
Opposition : None Known
HISTORY
Source : California Association of Public Cemeteries
Related Pending Legislation : SB 1009 (Nielsen, 2016) would
authorize a public cemetery district to inter a person who is
not a resident of the district or who does not pay property
taxes on property located in the district if specified criteria
are met. SB 1009 is currently in the Senate Governance and
Finance Committee.
Prior Legislation :
SB 184 (Committee on Governance and Finance, Ch. 210, Stats.
2013) See Background.
SB 113 (Committee on Local Government, Ch. 332, Stats. 2009) See
Background.
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SB 341 (Committee on Local Government, Ch. 57, Stats. 2003) See
Background.
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