This is a good question: the subject of many lawsuits and considerable confusion, even amongst the legal community. The owner of the burial right, initially, is who is declared as the owner upon purchase, and recorded as such in the cemetery’s records. Upon the death of the initial owner of the burial right, if no Will (intestate), the burial right passes in common to be jointly owned by the decedent’s first tier next of kin. If the decedent has a Will, the Will by devise may designate some other owner of the burial right inheritance. (Most Wills are silent as to burial rights, as the drafter of the Wills rarely think to address the matter). Further, upon the passing of the next of kin, the owner of the burial rights pass the same way, in stripes, to their next of kin.

Under Kentucky law, once someone is buried in the grave, it is the deceased next of kin, and not the owner of record, that controls what happens or not with the grave. Commonly in this industry, a friend or other family member will buy a grave or permit its use by another, whereupon the next of kin then assume say for the grave after burial.

By Kentucky law the next of kin is first to the children of the deceased, and not to the spouse. Kentucky attempted to correct this issue by creating a marital law that gives one half to the spouse, and the remainder of the decedent’s estate to the children or next of kin. The result of these probate laws, is that if a person dies intestate, the spouse gets a one half interest in the burial rights and the children also get a one half interest in the burial rights. The courts have given deference to the wishes of the spouse in all matters pertaining to the grave, over that of the children.

Many issues arise as all of the co-owners of one or more graves, try to agree on its monument, decorations, resale, further interment use, etc. As in all commonly owned real property, all owners must agree, or the matter goes to Court to decide.

Another point that many do not understand is that a burial right by law is an easement, whose ‘use’ is for burial purposes. The cemetery continues to own the ground by fee simple, and has the right under law to establish rules and regulations for its operations. What families purchase when they buy a cemetery lot, is an easement of use, subject to the cemetery’s rules, for burial purposes. It is that easement, known as a ‘burial right’, that passes with time to other family members. The more time that passes, the more generations that occur, the larger the family of inheritors, the more confusing the inter-family relationships i.e. divorces, adoptions, second marriage, the more non-related by blood interments are permitted by the family in the burial rights, etc. the more confusing ‘ownership’ of the burial rights become.

Visit our Rules and Regulations, and at the end of the these you will find a more extensive review of succession rights of burial easements. If you have any questions you can contact me at the Kentucky Cemetery Association, as its General Counsel. See, http://www.kentuckycemeteryassociation.org/ for contact information.