mort law L5

disposition

methods of final disposition

• interment

• entombment

• natural / green burial

• burial at sea

• cremation

• donation

• alkaline hydrolysis

Interment

Derived from inter, meaning to bury in the ground.

•For decades, predominant choice in North America was earth burial.

•Today, second only to cremation.

cemetery

is an area of ground set aside and dedicated for interments.

•Public

•Private

Public cemetery

- Owned by a government.

•Subject to anti-discrimination laws.

•Commonly regulated by state agencies.

•Often require outer burial containers and may have receiving vaults.

•Often provide burials six days a week.

•May have specs for size and placement of markers and monuments.

•Control the rights of landowner access

Private cemetery

- Owned by a private enterprise, e.g.

•May not be subject to anti-discrimination laws.

•May have special requirements and or prohibitions, e.g.,

•Only allowing persons of a certain faith.

•Requiring eco-friendly burial containers.

•May adopt their own rules and regulations, such as:

•Days and hours when a burial may take place.

•Number of urns allowed per burial space.

national cemeteries

•Restricted to eligible veterans and active-duty members of the Armed Forces of the United States.

•Spouse and dependent family members may also be eligible.

•Veterans must have been:

“discharged under other than dishonorable conditions.”

There are five military discharge classifications:

1. honorable discharge

2. general discharge under honorable conditions

   These two discharges normally will grant veteran benefits upon separation from service, including burial in a national cemetery.

3. other than honorable discharge

4. bad conduct discharge

5. dishonorable discharge

   These discharges generally do not grant any veteran benefits; however, in unique circumstances they may be reviewed by the VA and reclassified.

Always wait for VA to confirm eligibility before making commitments.

Advise family of need to confirm eligibility of decedent before making or announcing plans for a national cemetery burial.

•Family and others may not be aware a veteran is ineligible for this benefit, e.g., the decedent may:

•Not have met the minimum required periods of service time.

•Have a disqualifying criminal conviction or had some legal action pending.

State Veteran Cemeteries

•Most states operate at least one state veteran cemetery.  Exceptions include Alaska, Florida, New York*, and Oregon.

*In 2021, NY approved construction of its first state veteran cemetery.

•Often built and improved with federal funds.

•Eligibility requirements are similar to those for national cemeteries.

•Being a legal resident of the state at the time of death is usually one requirement.

•Must contact individual cemetery superintendent to arrange a burial.

Pet Cemeteries

•Rate of human cremations has fueled significant support for the burial of human and pet cremated remains together.

•Some states have specific laws, including PA, VA, NY, NJ, FL and OR.

•May be restricted as to:

•Location (traditional or pet cemetery).

•Placement (common or separate containers).

•Markers and monuments.

Cemetery Legal Considerations

•Cemeteries:

•Are not a nuisance per se.

•May be regulated by zoning ordinances.

•May be prohibited on real property operated by a funeral establishment.

•Funeral establishments may be  prohibited from:

•Engaging in any cross-marketing with a cemetery.

•Sharing services with a cemetery.

•Having other business relationships with a cemetery entity.

Eminent domain

is the inherent power of a government to take private property for public use.

•Eminent domain is in the 5th Amendment to the U.S. Constitution.

•Requires ‘just compensation’ be given to the private property owner.

•Eminent domain proceedings may be initiated by a government to take private cemetery land (or any other real property) for a public use.

cemetery plots

Grave

Lot

Block

Section

Block

Several lots

Grave

Smallest; aka, a burial or funeral plot.

Lot

Several graves/interment spaces.

Section

Largest space

May be called ‘interment rights’ or a ‘grant of exclusive right to burial’.

Consumer purchases exclusive right to use the land for burial, while cemetery retains ownership of the land.

•Not assessed state/local property taxes.

•Person with right to control must verify the rightful use of a plot (grave).

State laws, rules and regulations may control the:

•Sale or transfer of a plot to a third-party.

•Transfer of a plot by a last will and testament, or any state mandated distribution of decedent assets when there is no will.

•Joint ownerships with a ‘right of survivorship’ clause.

States may provide for a cemetery to have a priority right to buy back plots before a  owners offers them to the public; and a right to reclaim graves not used after a specified number of years.

Desecration

the treatment of burial plots with disrespect and contempt, often in the form of vandalism or theft.

•Criminal laws often address this particular type of vandalism with statutes specific to a cemetery or other place of disposition.

•Most often specify two types of illegal conduct:

1.Damaging a cemetery location or place of interment of human remains.

2.Stealing personal property from a cemetery location or place of interment.

Disinterment (or exhumation)

the removal of human remains from the place of final disposition

Public reasons for disinterment may include:

•A criminal investigation or prosecution.

•An eminent domain proceeding to seize land on which a cemetery is located.

•The need to ensure public health and safety

Private reasons for disinterment may include:

•A desire to move human remains to a different section of a cemetery.

•A desire to move human remains to a different cemetery.

•A desire to consolidate several burials into one family plot.

•A need to recover improperly buried valuables or items of personal significance.

Disinterment is regulated by the

____ states and usually requires a permit.

•Exception: Some states allow for a disinterment and subsequent reinterment in the same cemetery without any need for a permit.

•When permanently moved to a different location, the state must be notified to make changes on the DC and in vital records.

•When being disinterred for public reasons, requires a court order.

•When for a private reason, requires approval of person w/priority right.

Who has the right to request/approve disinterment for private reasons?

•There is no common answer, as states vary significantly in identifying this person.

•May not be same person who had a priority right to control the funeral and final disposition at the time of need.

•Funeral directors must always research state and local laws, and practice due diligence in these matters.

funeral director role of disinterment

•Coordinate with the family, public officials and allied professionals.

•Supervise the disinterment.

•Examine the integrity and condition of the container and, if needed, transfer the remains to a suitable container.

•Transport the human remains.

•Supervise any subsequent reinterment

Entombment

the placing of human remains in a crypt in a mausoleum;

Provides for safeguarding human remains above ground.

•In most cases, embalming is required by mausoleum officials.

•May have special rules on the allowable types of containers.

•Removal of human remains from a mausoleum space generally follow same rules as an earth burial removal (disinterment).

mausoleum

a building containing crypts or vaults for entombment.

crypt

a chamber in a mausoleum, of sufficient size, generally used to contain the casketed remains of a deceased person.  

Green burial

the final disposition of human remains without the use of chemicals or materials not readily biodegradable.

•may also be known as a natural burial.

•Utilizes products, services, and merchandise that are:

• Free of toxic and hazardous materials.

• Biodegradable.

• Minimize the use of energy

•Has a long historical record dating back to the Greeks around 1600BC.

•Relative newcomer for contemporary purposes and dispositions.

•Sometimes requires unique funeral goods and services.

•Requires disposition in a specific cemetery or the specific section of a traditional cemetery

no regulations

The U.S. government has ____ specific to green burials.

State laws

ensure protection of the environment and public health.

State laws may focus on the location for dispositions, including:

•Any evidence of underground potable water supplies.

•The potential for any ground contamination

Burial at sea

regulated by the U.S. Environmental Protection Agency (EPA).

600’; quickly sinks

EPA regulations require burial in water at least ___ deep and three nautical miles from land.

Regulations specify the preparation required to ensure the container holding the human remains ___ and remains at the bottom of the sea.

Military burials at sea are handled by the U.S. Navy for:

•Active-duty members.

•Honorably discharged retirees and veterans.

•U.S. civilian marine personnel of the Military Sealift Command.

•Dependent family members of the above

The cremation rate in the 1920’s

1%

The lowest rate in 2019

23.7% in Mississippi

The highest rate in 2019

80.1% in Nevada

Some argue cremation is_____, as further steps must be taken to dispose of the cremated remains

not the final disposition

Legally, states recognize cremation as ____, not the disposal of the cremated remains thereafter

the final disposition

Like all final dispositions, cremation must be authorized by ______ to control the disposition

the person with the priority right

Forms vary, but may include any or all of the following eight elements:

1. Notice the cremation process is irreversible and consumes everything except bone and metal.

2. Acknowledgement there has been a positive ID of the decedent.

3. Affirmation from person with priority right to control they have such right and, when applicable, is acting to carry out wishes of decedent.

4. Affirmation the human remains do not contain any hazardous items or materials (i.e., pacemakers, battery packs, radioactive implants).

5. Confirmation personal property of value has been removed from the body and the container, and any remaining will be destroyed

6. Name of person authorized to receive cremated remains and a statement about the disposal of unclaimed cremated remains.

7. Description of any container provided by authorizing agent and, if none, acknowledgement a temporary container will be used.

8. A signatory section to attest to the accuracy of the information provided and expressly authorize the cremation

Prior to cremation:

• A certificate of death must be filed with a vital records office.
• A government permit must be issued stating the authorized:
• Method of disposition (cremation).
• Date of the cremation.
• Location of the cremation (crematory)

Preparing and then transporting human remains for cremation follows a logical order and sequence, including these nine activities:

1. Verify name and identity and tag the human remains for identification.

2. Remove any medical devices or equipment.

3. Remove any personal property items.

4. Dress and apply cosmetics (if any) as requested by family.

5. Enclose remains in a leak proof pouch or similar container to contain any bodily fluids, and tag the pouch or container for identification.

6. Place remains in a suitable alternative container and tag the container for identification.

7. If requested by family, place personal items in the container.

8. Transport remains in a dignified and respectful manner to the place of cremation, along with any required documentation.

9. Provide for retrieval of the cremated remains at a later date

the funeral director is most often responsible for:

• Assisting a family in selecting an appropriate container to safeguard the cremated remains.
• Transferring the cremated remains from a temporary container to one or more permanent containers.
• Providing transportation of the container holding cremated remains to the site of any funeral, memorial or burial service

THERE ARE FOUR POSSIBLE DISPOSAL
OPTIONS:

1. Burial in the ground (aka inurnment in some regions).
2. Placement in a niche, defined as a recess or space in a columbarium used for the permanent placement of cremated remains.
3. Retention in a private residence or other location as a keepsake.
4. Scattered in or on the earth or water (where not prohibited).

• Must always respect religious laws, rites, or customs that may influence these disposal options.
  

State laws set conditions upon which unclaimed cremated remains may be disposed of by funeral directors, crematory operators and other death care providers

1. Identification of those persons with the authority to dispose of unclaimed cremated remains.
2. The period of time that must pass before cremated remains are considered ‘unclaimed’ and subject to disposal by others.3. Acceptable options for disposal of unclaimed cremated
remains.
4. Requirements for maintenance of records to support due diligence efforts taken to contact person with right to control disposition and request they retrieve the cremated remains.
5. Requirement to maintain permanent record of the date and location of any disposal.
* For unclaimed cremated remains of a veteran, most states permit
transfer to an authorized veteran organization for disposal.

Common sources of tort claims include misidentification and mistakes resulting in cremation of the wrong body.
To reduce the potential for a claim:

• Practice risk management in the workplace.
• Develop comprehensive operational manuals.
• Document all activities and actions taken to safeguard both human remains and cremated remains

There are two key benefits to documenting activities and actions taken to protect human remains and cremated remains.

1. Brings a level of accountability to staff and provides an owner the means to actively monitor compliance.
2. Establishes a written record demonstrating a consistent intent and practice to exercise due diligence in carrying out duties and responsibilities.

Educational institutions and scientific research facilities regularly need sources to supply cadavers.

There are two primary sources

1. Individuals may donate their human remains by means of a preneed or exercising any one of several options available in most states.

2. The person with the priority right to control a final disposition may choose body donation, assuming the decedent did not
   specifically object to a donation prior to their death

uniform anatomical gift act

UAGA

The UAGA

a federal law designed to be adopted by all the
states so the statutes in one jurisdiction are the same as the statutes on the same subject in other jurisdictions.
• As of 2017, all 50 states have adopted the core elements of ____.
• The requirements for body and body part donations are enforced by the individual states.

The UAGA was most recently updated in 2006 to:

• Eliminate the need to have a witness to the person signing a donation authorization.
• Mandate uniform donor cards be recognized as legally binding in all 50 states.
• Allow for persons to express a desire to donate: on a driver’s license; by verbal expression; in a written will; or in an advance
directive.

Alkaline hydrolysis

defined as a process that uses water,
alkaline chemicals, heat, and sometimes pressure and agitation to accelerate natural decomposition, leaving bone fragments.

• Has been described by a NY Times reporter as:
“A chemical bath to dissolve protein, blood and fat, leaving only a coffee-colored liquid, powdery bone and any metal implants, like
dental filings.”

May alternatively be called:
• Bio-cremation.
• Flameless cremation.
• Water cremation.

There are three simple steps to preparing the residue after the alkaline hydrolysis process for presentation to a family:

1. Liquid and metal waste products are removed and discarded.
2. Bone fragments are ground into a powdery ash.
3. The ash is placed in a temporary container and returned to the family.

• By early 2021, there were roughly 20 states that had approved ___ as a method for the final disposition of human remains.
• Other states are considering approval

alkaline hydrolysis