Right of Sepulture to a Used Burial Space in a Plot

    An estate planning and probate attorney should not forget about used burial spaces.  Consider, for example, a plot owner who purchases a plot containing two burial spaces.  Even after he buries his deceased wife in one of the spaces, he will still be the owner of the exclusive right of sepulture to both burial spaces. The exclusive right of sepulture to a burial space does not disappear once the remains of a person have been interred in the space.  In fact, there are several important rights that are peculiar to a used space:

• The right to make decisions regarding the design and placement of any markers, monuments, or other memorials on a grave in the plot.  See Sherman v. Gray, 150 Me. 13, 102 A.2d 867 (1954).

• The right to consent—or to withhold consent—to a subsequent interment in the same plot.  See Tex. Health & Safety Code §711.0395.

• The right to consent—or to withhold consent—to the disinterment of the remains buried on the plot.  See Tex. Health & Safety Code §711.004(a).

• The complete right of sepulture in the plot following a disinterment and removal of remains from the space.
  

Thus, whether an attorney is drafting a Last Will and Testament or a Transfer of Right of Sepulture, the attorney should include all burial property owned by the plot owner (or former plot owner, as the case may be)—both used and unused—in the instrument.  This is just one more service that a savvy estate planning and probate attorney can offer his clients.