BILL ANALYSIS Ó
SB 1179
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Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1179 (Vidak) - As Amended June 6, 2016
PROPOSED CONSENT
SENATE VOTE: 38-0
SUBJECT: PUBLIC CEMETERY DISTRICTS: INTERMENT RIGHTS
KEY ISSUE: SHOULD AN OWNER OF AN INTERMENT RIGHT IN A PUBLIC
CEMETERY DISTRICT BE ALLOWED TO TRANSFER THAT RIGHT TO
SUCCESSORS OR HEIRS?
SYNOPSIS
A public cemetery district is a form of special district that
provides cemetery and interment services throughout California.
The district is financed with public dollars (e.g., taxes, fees,
and assessments) and generates additional revenue by selling
burial plots to residents living within the special district.
Each public cemetery district is governed by a board of
trustees, and sets the fees for burial rights sold in the
district. Once the purchaser pays the fee, the purchaser
receives an interment right. In most cases, an individual who
purchases a burial right is either buying the plot for a
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decedent or is buying the plot with the intent of being buried
in it (presumably upon that person's death). An issue arises
when the purchaser of the plot ends up not using it. Today, if
the purchaser of the burial right dies and is not buried in the
plot, there is no mechanism for the interment right to be passed
on to living heirs.
This bill seeks to clarify the rights underneath an interment
right, and provides the groundwork for passing on an interment
right to successors by allowing a purchaser to transfer the
right to a named successor on a designation form, or through a
testamentary instrument. This bill also requires that when a
named successor comes forward to claim the interment right, the
successor must execute an affidavit to confirm his or her
ownership. In order to allow a cemetery district to reasonably
rely on these affidavits, this bill provides a narrow and
qualified immunity in the event that the district assigns the
interment right to the wrong person. This bill is sponsored by
California Association of Public Cemeteries and receives support
from various public cemetery districts throughout the state.
There is no opposition. This bill will move to the Assembly
Local Government Committee should it advance out of this
Committee.
SUMMARY: Clarifies the scope of rights behind an interment
right, and establishes a process to allow an owner of an
interment right to transfer that right to successors.
Specifically, this bill:
1)Defines an interment right as a transferable property interest
that provides an owner of the right to use or control the use
of a plot for the interment of human remains. An interment
right also includes the following rights:
a) The right to determine the number and identity of
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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) The right to control the placement, design, wording,
and removal of memorial markers in compliance with all
applicable regulations adopted by the cemetery district.
2)Provides that an interment right shall not be construed as
conferring title to the property burdened by the transferable
property interest.
3)Allows an owner of an interment right to designate in writing
the person or persons who may be interred in the plot to which
the owner holds the interment right.
4)Requires an owner of an interment right to designate, at the
time of purchase, a successor owner or owners of the interment
right in a signed written designation deposited with the
district.
5)Recognizes that if the owner of an interment right dies
without making a valid and enforceable disposition of the
interment right by a specific devise in a testamentary device,
or by a written designation, the interment right shall pass
according to the laws of intestate succession. In the event
that the owner has no heirs at law, the district shall follow
the abandonment procedures established for public cemetery
districts.
6)Recognizes that an interment right does not include the right
for disinterment of human remains except on consent of the
cemetery district and the written consent of the surviving
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spouse, child, parent, or sibling, in that order of priority.
7)Specifies that this act does not 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 the court, the coroner, or the health department.
The cemetery district shall maintain a copy of the written
order and retain records relating to the removal or final
disposition of the remains.
8)Requires the district, upon a sale of a burial plot, to notify
the purchaser in writing all of the following:
a) The interment rights of the purchaser;
b) The law that governs the successive ownership of
interment rights; and
c) The district's adopted policies, rules, and
regulations governing the use, sale, or other transfer of
interment rights.
9)Allows a surviving spouse, registered domestic partner, child,
parent, or heir who has an interment right to waive the right
in favor of any other relative of the deceased owner or spouse
of a relative of the deceased owner.
10)Requires a person who purports to be the successive owner of
an interment 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 as provided.
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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.
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.
11)Requires the successive owner of an interment right to comply
with applicable state and local laws, and applicable
requirements or policies established by the district board of
trustees.
12)Provides that when a public cemetery district acts to
transfer ownership rights or make an interment on the basis of
a written affidavit described in #10, the district, an
employee, or trustee shall not be liable for any claims,
losses, or damages asserted in any action unless the district
had actual knowledge that the facts stated in the written
affidavit were false.
EXISTING LAW:
1)Provides that the right of burial is a form of burden or
servitude upon land, and may be attached as incidents or
appurtenances, and are called easements. (Civil Code Section
801.)
2)Establishes Public Cemetery District Law, which provides how
public cemetery districts may be formed, and regulates a
district's cemetery and interment services. Provides that
each cemetery district shall be governed by a board of
trustees. (Health and Safety Code Section 9000 et seq.
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Unless otherwise stated, all further statutory references are
to the Health and Safety Code.)
3)Provides that a district shall have and may exercise all
rights and powers, expressed and implied, necessary to carry
out the purposes and intent of the Public Cemetery District
Law, including, among other powers, the following authority:
to sue and be sued; to acquire, sell, or lease property; to
engage counsel and other professional services; and to enter
into and perform all necessary contracts. (Section 9041.)
4)Provides that a district may sell interment rights in its
cemeteries, columbariums, and mausoleums, as specified.
(Section 9049.)
5)Defines interment right as the right to use or control the use
of a plot, niche, or other space, authorized by law, for
interment of human remains. (Section 9002.)
6)Provides that the board of trustees shall adopt a schedule of
fees for interments in cemeteries owned by the district and
for other necessary and convenient services. (Section 9068.)
7)Limits interment in a cemetery owned by a public cemetery
district to the following:
a) Persons who are residents of the district;
b) Persons who are former residents of the district and who
acquired interment rights while they were residents of the
district;
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c) Persons who pay property taxes on property located in
the district.
d) Persons who formerly paid property taxes on property
located in the district and who acquired interment rights
while they paid those property taxes.
e) Eligible nonresidents of the district, as provided in
this chapter.
f) Persons who are family members of any person described
above. (Section 9060.)
8)Provides that a public cemetery district shall maintain
accurate and current records, including records of the
location of the sites where persons have acquired interment
rights, including the names and addresses of the persons who
have acquired these interment rights, and the location of
plots where interment rights are available for acquisition.
(Section 9064.)
9)Establishes a process for a public cemetery district to seek
the abandonment of an interment plot. To seek abandonment,
the board of trustees of a public cemetery district shall file
a petition with the superior court, as provided, with all of
the following information:
a) An identification of the interment plot that the
district desires to be declared abandoned.
b) A statement that the district has made a diligent search
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to locate the present owner of the interment plot.
c) A statement that the present owner of the interment plot
is unknown to the district.
d) A statement that, to the best knowledge of the district,
at least 50 years have passed since any portion of the
interment plot has been used for interment purposes.
e) A statement that, after a reasonable physical
investigation of the interment plot, the interment plot has
not been used for the interment of human remains.
f) A request that the court declare the interment plot
abandoned. (Section 9069.)
10)Provides that in a petition for abandonment, the public
cemetery district shall give notice of the court's hearing, as
provided. If the court determines that the interment plot is
deemed abandoned, full title of the interment plot shall
revert to the district. The court's order shall not become
final until one year after the date on which the court made
its order. The district shall give notice of the court's
order as provided. At any time before the court's order
becomes final, any person may petition the court to reopen the
proceeding. (Section 9069.)
11)Establishes rules for private cemeteries. (Section 8250 et
seq.)
12)Provides that if an owner of a plot in a private cemetery
dies without making a disposition in his or her will by a
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specific devise, or by a written declaration filed and
recorded in the office of the cemetery authority, any
unoccupied portions of the plot shall pass according to the
laws of intestate succession as provided. (Section 8650.)
13)Provides that the seller of a cemetery plot shall notify the
buyer that unused portions of a family plot may pass through
intestate succession unless written disposition is made by the
buyer and may be sold, transferred, or donated by the buyer's
heirs. The seller shall notify the buyer of the effect of a
future transfer, sale, or donation of the unused portion of a
family plot on any endowment for care or maintenance of the
plot that the buyer may purchase in conjunction with the
purchase of the cemetery plot. (Section 8650.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: A public cemetery district is a form of special
district that provides cemetery and interment services
throughout California. The district is financed with public
dollars (e.g., taxes, fees, and assessments) and generates
additional revenue by selling burial plots to residents living
within the special district. Each public cemetery district is
governed by a board of trustees, and sets the fees for burial
rights sold in the district. Once the purchaser pays the fee,
the purchaser receives an interment right. An issue arises when
the purchaser of the plot ends up not using it.
In describing the underlying problem with existing law, the
author writes:
Current law presently provides no direction to public
cemeteries when it comes to the use of interment rights
purchased by someone who has already passed away without
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designating a successor. Because of this ambiguity with the
passing of interment rights, some public cemeteries have
established their own guidelines or policies as to how
interment rights are passed down. With guidelines varying
from district to district, it can cause confusion and delay
for a family that is trying to utilize an interment right
purchased by a deceased family member.
When a cemetery decides to use an interment right that has not
been probated or successor named in legal documents, they
usually have about 3 to 7 days to make a decision to
accommodate the family's request to inter the deceased. These
quick and emotional decisions must be made by public
cemeteries to determine who has the authority to use the
interment right with very little guidance from the law.
To resolve the problem described above, this bill clarifies the
scope of rights behind an interment right, and establishes a
process to allow an owner of an interment right to transfer that
right to successors in public cemetery districts.
This bill clarifies the rights underneath an interment right.
Generally under current law, an owner of an interment right in a
public cemetery district has the right to use the burial plot
for the interment of human remains. This bill expands the
interment right in two ways. First, this bill provides that an
interment right also includes the right to control the
placement, design, wording, and removal of memorial markers - a
right that is likely presumed by a purchaser. Second, and more
significantly, this bill provides that the owner of an interment
right may identify persons who may be interred in the plot.
This is important because it explicitly allows a purchaser to
buy a burial plot for another (e.g., a decedent), and recognizes
that an owner of an interment right has the ability to designate
successors.
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Additionally, this bill clarifies what an interment right does
not entail. According to the author and the sponsor, California
Association of Public Cemeteries, individuals who purchase an
interment right believe they own or hold all of the property
rights relating to that burial plot. Accordingly, these
individuals mistakenly believe that they have the right to
disinter human remains. This is potentially problematic because
disinterment that is done inappropriately may create public
health risks. Although burial rights are traditionally viewed
as easements - and thus a form of property right - an interment
right only confers a property interest relating to the burial
right. To provide additional clarity to purchasers about their
burial rights, this bill states that an interment right shall
not be construed as conferring title to the property burdened by
the transferable property interest. Additionally, this bill
explicitly states that an interment right does not include the
right for disinterment except with the consent of the cemetery
district and certain next of kin.
This bill lays the groundwork for passing on an interment right
to successors. If the purchaser of a burial right dies and is
not buried in the plot, there is no mechanism for the interment
right to be passed on to living heirs. This bill importantly
provides that mechanism by requiring a purchaser to designate a
beneficiary or successor. Additionally, this clarifies that an
owner of an interment right may transfer his or her interment
right in a trust, will, or other testamentary document. Of
course, a purchaser who fails to name a successor does so at his
or her own peril. In that unfortunate scenario, this bill
provides that the interment right passes according to the rules
of intestate succession, similar to the transfer of burial
rights in private cemeteries. Consistent with other intestate
rules, this bill allows heirs who have an interment right to
waive that right in favor of any other relative of the deceased
owner. In the event that there are no living heirs, the
interment right does not escheat to the state; rather, this bill
requires that the cemetery district follow the abandonment of
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property procedures provided in the Public Cemetery District
Law. Under those procedures, if a court determines that the
property has been abandoned, the property eventually flows back
to the cemetery district and may be re-sold.
Since stakes are high, this bill requires the named successor to
execute an affidavit to confirm the successor's ownership. This
bill reasonably requires a person who purports to be the
successive owner of an interment right to execute an affidavit
under penalty of perjury, attesting to the following facts: (1)
the successor is entitled to succeed the interment right; (2)
the successor 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) the successor 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 verifying
process protects the rights of the original purchaser, and
prevents an individual from fraudulently walking away with a
dead giveaway. Given that a public cemetery district must rely
on these affidavits to transfer burial rights, this bill
provides a narrow immunity to the district in the event that it
transfers a burial plot to the wrong person unless the district
has actual knowledge that the facts in an affidavit attesting
succession rights are false. While this Committee is generally
skeptical of immunity provisions, this qualified immunity
appears reasonable; this is because without the immunity, the
cemetery district would have to independently verify the death
of the owner, and verify the rights of the successive owner by
examining either probate or testamentary documents-a burden that
cemetery districts should not be expected to bear.
REGISTERED SUPPORT / OPPOSITION:
Support
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California Association of Public Cemeteries (sponsor)
Altaville Cemetery District
California Special Districts Association
Fair Oaks Cemetery District
Kern County Cemetery District
Lemoore Cemetery District
Los Banos Cemetery District
Madera Cemetery District
Murrieta Valley Cemetery District
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Oroville Cemetery District
Paso Robles District Cemetery
Public Cemetery Alliance
Roseville Public Cemetery District
San Jacinto Valley Cemetery District
Sutter Cemetery District
Opposition
None on file
Analysis Prepared by:Eric Dang / JUD. / (916)
319-2334