The Cemetery is perhaps the institution in American life least often thought about. Yet, most of us have had (or will have) some contact with a cemetery during our lives.
We at Katz & Dougherty have been providing legal advice to those who operate cemeteries and to those who have questions about their family plot.
As attorneys for the N.J. Cemetery Association and for a number of cemeteries throughout New Jersey, the lawyers at Katz & Dougherty have been active in resolving legal questions about this State's cemeteries, fighting to protect older, established cemeteries against the pressures of suburban sprawl, and fighting to permit new cemeteries to provide modern, dignified and convenient service to the public in a State where available sites for these important institutions are scarce and where the resources for interment and sepulture are depleting rapidly. See, for example, Trinity Cemetery Association v. Tp. of Wall, where we were called upon to prevent a Township from exercising its broad and powerful zoning powers to prevent a previously-approved cemetery from serving the community. Trintity Cemetery v. Tp. of Wall
It is surprising how many people find themselves in need of guidance when it comes to this seemingly quiet area of life. Here are some of the questions we get asked:
Whose right is it? When dad died, we buried him in the family plot, and left the adjacent grave available for mom. But mom has since remarried and is living on the west coast. Can I make plans for the unused grave or does Mom have that right?
ANSWER: The right answer would depend on a number of things, such as the way the cemetery wrote the deed to the plot, and what dad wrote in his will, if anything, about the burial plot, and much more. Mom most likely will have rights to use the plot so long as it she wants it, but the answer is elusive. We counsel families to discuss these matters among themselves and to reach accord whenever possible, consistent with the legal rights we can ascertain.
Headstones, who selects? Lots of times people disagree on what should be placed, if anything at all, to mark the grave of a loved one.
The ANSWER, like answers to most cemetery questions, lies in several areas of inquiry including the rules and regulations of the cemetery (some of which restrict monumentation rights in the Rules and Regulations) and including the relationship between the differing family members and the deceased. Normally, in the absence of binding directions left by the deceased, the right to control monumentation is vested in the same people who control the right of selecting the place and manner of interment for the deceased. Again, good family communications is a key factor in limiting the stress and uncertainties that arise from such situations