Prior to World War II, it was not uncommon, especially in rural areas, for families to bury their deceased family members in a small corner of their property. Now that some of those rural areas are not so rural anymore, a property owner may be surprised to find that their land is host to the remains of prior owners from days gone by.
The owner of land that contains a family cemetery has two options with respect to the cemetery. The first is to allow the cemetery to remain in place. The other option is to obtain a court order allowing the relocation of the cemetery. In Virginia, a circuit court can order the relocation of a family cemetery if the cemetery has been abandoned and it is not historically significant.
If the owner allows the cemetery to remain in place, that owner generally has no duty to maintain the cemetery, other than any duty local proffer requirements and zoning ordinances might impose.
If an owner wants to relocate an abandoned family cemetery on their property to an established cemetery, there are several steps the owner must take.
The owner should have a title examination performed to determine whether there is a reservation of rights to the cemetery in the chain of title. A reservation of rights to a family cemetery in a deed is generally not considered a reservation of the fee-simple ownership of the land that constitutes the cemetery. Rather, it is akin to an easement in gross that allows family members or other beneficiaries to make burials, visit, and maintain the cemetery. If the cemetery use is discontinued and the remains relocated, the reservation is extinguished, and the beneficiaries of the reservation have no further rights to the underlying land.
The owner should also confirm that the cemetery is, in fact, abandoned. The Virginia Code specifically requires that to be considered abandoned, there can have been no human remains buried in the cemetery for a period of at least 25 years. In addition, the owner should confirm that the cemetery is in a state of disrepair and has not been maintained in any way for a substantial time period.
Family cemeteries are generally not considered “historically significant” unless a historically significant person is buried there, there is some unique architectural aspect of the cemetery, or the cemetery is directly connected to a historically significant place or event.
While not required, it is advisable to get an archeologist to perform a cemetery delineation to confirm the boundaries of the cemetery and the location of any marked and unmarked graves.
It is also advisable to retain a genealogist to locate the descendants of those known to be buried in the cemetery and any other possible beneficiaries of any reservation of rights. If not all of the descendants can be located, the Virginia Code encourages the property owner to follow several guidelines, including publishing a notice for the public, and alerting local genealogical and historical societies.
If the cemetery has no historical significance and has been abandoned, the landowner can petition its jurisdiction’s circuit court for an order allowing the relocation of the cemetery to an established cemetery where the graves would receive perpetual care and maintenance. The property owner is responsible for the relocation costs.
Prior to filing a petition to relocate a cemetery, it may be advisable to contact the known descendants of individuals buried on the property to explain the process to them and to establish some goodwill. The owner should also ask them if they have knowledge of other descendants who might not have been identified, and ask them for consent to relocate the graves at no expense to them.
The petition must name “all parties in interest,” which is not clearly defined in the Virginia Code. Therefore, it might be advisable to include “parties unknown” in the petition. The “parties unknown” must be served through publication in a local newspaper and a guardian ad litem must be appointed.
It is within the discretion of a circuit court to determine whether the relocation is appropriate and, in the past, courts have ordered relocations over the objections of some descendants.
Once the court has entered an order and the 30-day appeal period has run, the graves can be relocated. This is usually handled by a licensed funeral home.
In many instances, it is simply not economically feasible to relocate an abandoned family cemetery. Other times, the size of the cemetery or the topography of the site make relocation an economic necessity. These are things to consider before filing a petition for relocation.
As a property owner, determining the best way to address a cemetery on your land can involve numerous parties and high costs, but it can be done.