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<xTITLE>Dividing the Burial Plot in Divorce</xTITLE>

Dividing the Burial Plot in Divorce

by Mary Salisbury
January 2020

As I work with more “grey divorce” couples, I’m finding that there may be an overlooked asset that needs to be divided or assigned to one of the spouses, and that is a cemetery burial plot.  A burial plot is treated for most purposes as being unlike any other piece of real or personal property.  One does not own the actual land where the burial plot is. One only buys the right to be buried in the burial plot so long as the cemetery remains a cemetery. The right to be buried in a certain plot is known as “the exclusive right of sepulture” and cemetery administrators must follow specific laws as to who can be buried in a plot.

Many people have gone to the trouble of pre-planning their funeral arrangements and have purchased burial plots.  Many couples buy burial plots in both their names as joint tenants. On the death of one, the other becomes sole owner.

It’s an easy asset to forget about during a divorce but complications can arise if the burial plot is not mentioned in the divorce settlement documents. Until or unless one or the other releases his or her rights, either by divorce decree or with the cemetery’s form, they will share the ownership rights. Very frequently controversies arise when there has been a second marriage following divorce or death of the first spouse; the children of the first spouse and those of the second spouse are often in disagreement.

What happens if a burial plot is not assigned to one spouse?  If the settlement agreement/divorce decree does not specify who owns the burial plot, or fails to very specifically name it in legalese, the entire family may have to agree on whether a deceased family member can be interned in the plot.  You can imagine the heartache and delay if there is no agreement.  Therefore, during a divorce, an important document to gather is the Deed of Internment Rights. The burial plot will need to be valued, which presents its own set of complications because a plot purchased years ago may have significantly increased in value.  After it is decided who gets the plot(s), the divorce papers will need to list the plot(s) as a marital asset to be divided and must specifically include EXACT information as to location, section and plot.

If neither spouse wants to keep the burial plot(s) but decide to sell the plot(s), they can start by talking to the cemetery owner. Many operate buy-back programs, and some even have first-right-of-refusal on a plot that the original owner no longer wants.  Unfortunately, many cemeteries offer only a fraction of the price that the plot is worth.  You can try Craigslist or eBay to either compare prices or to sell directly.  There are several registries and brokers who will market the plots and handle some or all of the necessary paperwork for a fee, commission or both. (For purposes of this article I have referred to burial plots but this information applies to mausoleums, crypts, and columbariums.)

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