BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1179|
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CONSENT
Bill No: SB 1179
Author: Vidak (R)
Amended: 4/21/16
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 4/19/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
SUBJECT: Public cemetery districts: interment rights
SOURCE: California Association of Public Cemeteries
DIGEST: This bill establishes an interment right as personal
property, requires the interment right owner to designate a
successor, and, in the event a successor owner has not been
otherwise named, establishes a procedure for the succession of
an interment right in public cemetery districts. This bill
provides 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 provides
the circumstances and process under which human remains may be
disinterred, reinterred, or removed from a public cemetery
district after interment, and specifies the records required to
be maintained by the public cemetery district and the person
removing and relocating the human remains.
ANALYSIS:
Existing law:
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1) Provides for the operation of interment services and
establishment of public cemetery districts.
2) 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.
3) Authorizes a public cemetery district to exercise all rights
and powers, expressed or implied, necessary to carry 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.
4) 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.
5) Defines "grave" to mean a space of earth in a burial park,
used, or intended to be used, for the disposition of human
remains, "crypt" or "vault" means a space in a mausoleum of
sufficient size, used or intended to be used, to entomb
uncremated human remains, and "niche" means a space in a
columbarium used, or intended to be used, for the placement
of cremated human remains.
6) 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.
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7) 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.
8) 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.
9) 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 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.
10)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.
11)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.
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12)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.
This bill:
1) Defines "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:
a) 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
b) To control the placement, design, wording, and removal
of memorial markers in compliance with all applicable
regulations adopted by the cemetery district.
2) Establishes 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.
3) Does 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: (a) the superior court of the county in
which the cemetery is located; (b) the coroner having
jurisdiction of the location of the cemetery; or (c) the
health department having jurisdiction of the cemetery.
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4) Requires 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:
a) The date the remains were removed;
b) The name and the age at death of the person whose
remains were removed if available;
c) The cemetery and plot from which the remains were
removed; and
d) If the removed remains are reinterred, the plot
number, cemetery name, and location to which the remains
were reinterred;
e) If the removed remains are disposed of other than by
being reinterred, a record of the alternate disposition;
or
f) If the removed remains are reinterred at the cemetery,
the date of reinterment.
5) Provides that an interment right is the personal 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.
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6) Authorizes 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.
7) Requires, at the time of purchase, 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.
8) Requires 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.
9) Provides 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:
a) To the competent surviving spouse or registered
domestic partner;
b) 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;
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c) 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;
d) 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;
e) If no spouse, child, parent, or sibling survives, to
the spouse of any child of the deceased owner; and
f) To the next heirs at law of the owner or the spouse of
any heir at law.
10)Authorizes any surviving spouse, domestic 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.
11)Defines "adult" to mean an individual who has attained 18
years of age and "child" to mean a natural or adopted child,
and provides 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.
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12)Provides 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.
13)Requires 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: (a) he or
she is the person entitled to succeed to the interment right;
(b) 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 (c) 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.
14)Requires, upon the sale to a person of a plot in a public
cemetery district, 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.
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 PCDL. 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, Chapter 210, Statutes of 2013), among other things,
revised the definition of "family member" to include "domestic
partner," as specified, in the PCDL.
This bill establishes an interment right as personal property,
requires the interment right owner to designate a successor,
and, in the event a successor owner has not been otherwise
named, establishes a procedure for the succession of an
interment right in public cemetery districts. This bill also
provides 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 provides
the circumstances and process under which human remains may be
disinterred, reinterred, or removed from a public cemetery
district after interment, and specifies the records required to
be maintained by the public cemetery district and the person
removing and relocating the human remains.
Comments
The author writes:
Current law presently provides no direction, outside of
probate, to public cemeteries when it comes to the use of
internment rights purchased by someone who has already passed
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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.
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,
creates 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,
this bill creates 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
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right owners, and their families clear successive rights to the
use and control of the plot.
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
SUPPORT: (Verified5/9/16)
California Association of Public Cemeteries (source)
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: (Verified5/9/16)
None received
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Prepared by:Margie Estrada / JUD. / (916) 651-4113
5/11/16 15:12:42
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