If you own one or more cemetery plots in Texas, who gets
those plots upon your death?
You might think that the plots will pass pursuant to the
Texas Estates Code and to the persons who receive your “residuary estate” (all
the rest, residue, and remainder of your estate after specifically described
gifts in your Will). Take a look at the
Texas Health & Safety Code, though, and also any contract you have signed
with the cemetery association that oversees the particular cemetery where you
own plots.
What is a
plot? “ ‘Plot’ means space in a cemetery
owned by an individual or organization that is used or intended to be used for
interment, including a grave or adjoining graves, a crypt or adjoining crypts,
a lawn crypt or adjoining lawn crypts, or a niche or adjoining niches.” Texas
Health & Safety Code § 711.038(25).
Who gets
the plots when you die (to the extent not used for your internment)? If you have a Will, you must specifically
describe the plots and then give them to one or more persons. Or, during your life, you may do a written
declaration, filed and recorded in the cemetery organization’s office, stating
who is to receive the plots upon your death.
(Check with the cemetery organization as it may have a form it wants you
to use.)
If you do
neither, then the right to use (be interred) in your cemetery plots passes as
follows: (1) to your surviving spouse, (2) to your children in order of need “without
the consent of a person claiming an interest in the plot”, and (3) to your
heirs at law. Health & Safety Code §
711.039 is where these rules are set forth; it is quite repetitive and not all
that clear, What is clear, however, is
that even though a cemetery plot is real property, unlike a deed to a
residence, commercial buildings, and raw land, its ownership is not conveyed by
filing a deed in the official public records.
Its ownership is recorded with and controlled by the records of cemetery
organization which controls the cemetery where the plot is located. Plots are different from other real property;
see Oak Park Cemetery v. Donaldson, 148 S.W.2d 994 (Tex. Civ. App.-Galveston
1940, writ dismissed) discussing that plots are a right of burial, akin to an
easement, license, or privilege.
Are you
able to sell your cemetery plot to a friend who needs one for a deceased
relative of theirs? Maybe and maybe
not. You also have to check the contract
with and governing documents of the cemetery organization. You may be surprised to learn that if you
want to sell the cemetery plot, you may be required to sell it back to the
cemetery organization, perhaps for the same amount paid for it.
If you have
cemetery plots that are important to your family, please be sure to deal with
them by specifically describing them in your Will or completing paperwork with
the cemetery organization that directs who receives the plots upon your
death. What happens if the plots are
located in a cemetery that no longer has an active cemetery organization? Consult an attorney. It could well be that the right to the plots
will just keep descending to the heirs of the original owners. All the living heirs might be required to
sign off on any interment, such as the placing of ashes into a grave which
already has a relative’s body buried there.
This could become rather unwieldy.
The living heirs might be able to designate one of them as an “agent” to
give directions regarding the plots.
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