Burial of a dead body, is the act of placing a person into the ground. This is by digging out a pit, placing a dead body in it, and covering it over. This process is also called inhumation or interment.
The right of burial is not an absolute right of property, but a privilege or license to be enjoyed subject to municipal regulation and control, and is legally revocable if the public necessity requires such revocation. However, the right to bury the dead and preserve the remains is a quasi right in property, the infringement of which may be redressed by an action in damages[i].
When a purchaser buys a family plot within an established cemetery he acquires only an easement or license to make internments therein as he assigned or as he designated with the cemetery. This right of sepulture is a property right subject to reasonable regulations by the cemetery and by the state. In the absence of an assignment of sites by the purchaser, before his death, the lineal descendants or parentelic relatives of the deceased have an easement in the unused sites in ground dedicated to family burials. The heirs are joint owners of the easement for interment. The right to possession of a lot or the right to be buried therein, is on a first-need basis (date of death), provided there is space available. As such, the consent of the other living joint or co-owners is not necessary for burial, but is necessary for selection of a particular burial site at the time of need. “Reservations” are not permitted[ii].
The restricted nature of a family’s property right is further illustrated by the principle that a family does not have any right to a deceased’s body after burial. Once a body is buried it is in the custody of the law, and removal or other disturbance of it is within the jurisdiction of New Jersey courts with equitable powers[iii].
A statute requiring that every body of a deceased person be decently buried or incinerated within a reasonable time after death does not circumvent or abrogate any rights or causes of action that have existed under the common law for hundreds of years. Also, a statute providing that a county government may provide for the establishment of any service that is not expressly prohibited by constitution or by law, including cemetery, burial, and memorial services, is constitutional because of the state’s legitimate governmental interest in the provision of burial services.
Civil courts have accepted jurisdiction to resolve, by applying equitable principles, burial and reinterment disputes which had traditionally been resolved by ecclesiastical courts. Although civil courts have jurisdiction to resolve this question, their authority is limited by the Establishment Clause of the First Amendment[iv]. Establishment Clause of the United States Constitution prohibits courts from resolving disputes by inquiring into and resolving disputed issues of religious doctrine and practice.
[i] Lascurain v. City of Newark, 349 N.J. Super. 251 (App.Div. 2002)
[ii] Fraser v. Tenney, 987 S.W.2d 796 (Ky. Ct. App. 1998)
[iii]Lascurain v. City of Newark, 349 N.J. Super. 251 (App.Div. 2002)
[iv] Wolf v. Rose Hill Cemetery Ass’n, 832 P.2d 1007 (Colo. Ct. App. 1991)