It is important for family history researchers to be aware of certain laws in Missouri regarding cemeteries and graves, particularly those that apply to the old, often abandoned, endangered smaller cemeteries and that provide at least some protection to them. Those cemeteries will be the focus of this page which will not list all laws, nor will it describe any in extensive detail. This is just a general overview and highlighting of certain laws that may pertain to those smaller cemeteries and not all cemetery laws. Be advised: I am NOT a lawyer, so any legal issues, uncertainties, questions or conflicts arising in this area should be directed to the proper authorities (county sheriff, county recorder of deeds, for example) or a Missouri attorney experienced in this area of the law. Be advised, though, that knowledge, interpretation and claims of the law varies. This especially may include funeral directors. Do not hesitate to obtain a second or even third opinion if any answer is not satisfactory. Also, laws can (and do) change. Note that a substantial portion of the Missouri statues, including additions effective August 28, 2010, primarily concern regulation of endowed care and pre-need care funds managed by larger cemeteries, so are not covered here.
Section 214.270 - Definitions - (21) "Family burial ground" describes a "Family burial ground" as "a cemetery in which no burial space is sold to the public and in which interments are restricted to persons related by blood or marriage;" Though the statutes occasionally mention a "private" burying ground, usually in the context of phrases such "family or private burying ground" or "abandoned family cemetery or private burying ground," "private" is never specifically defined. Those old, usually abandoned smaller cemeteries may have had a larger base than just blood-relations such as a smaller local community. Thus, the law appears to leave some technical gaps in its wording, though if any issues came to court and definitions were contested, I suspect the law's intention would be interpreted as applying "family burial ground" equally to any small, abandoned burying ground as they are not specifically defined or covered elsewhere.
The primary Missouri statutes concerning cemeteries are in two Chapters of Missouri Revised Stautes: 214 and 194. The predominant Chapter is 214 entitled "Cemeteries." The first link, below, shows its full content listing. The second Chapter, 194, "Death--Disposition of Dead Bodies" establishes a legal requirement to notify authorities upon discovery of unmarked human remains and provides penalties for knowing disturbance of a human burial site. A few other provisions relating directly or indirectly to cemeteries exist in various other Chapters and Sections of the Missouri Revised Statutes.
For those concerned about smaller family cemeteries, these general statutory provisions are of particular interest:
Those small, historic family burial grounds often suffer multiple problems which include: 1) Being located well inside the bounds of otherwise privately-owned land and not directly accessible from a public road; 2) Not having had title to the piece of land specifically apportioned and reserved from the surrounding parcel; and 3) Abandoned, not maintained, fallen into disrepair and vandalized. The Missouri laws do attempt to adress these conditions.
My own experience has been that land owners have been very nice about allowing visitation of cemeteries surrounded by their land, but it is common courtesy to let them know what you are doing there. In some cases, advance notification and arrangement may be appropriate. However, in those few isolated cases of hostile land owners, knowing the law, its statutory citation and enforcement options may be necessary.
The primary statutory laws governing cemeteries in Missouri, including family and private burial grounds, are located in Missouri Revised Statutes, Chapter 214. Global online search at Missouri Revised Statutes. Citations to certain subsections of particular interest to families and genealogists are as follows:
Chapter 194, "Death--Disposition of Dead Bodies" generally addresses requirements for handling and disposition of corpses but also includes specific provisions providing penalties for disturbing burial sites or human remains and establishes notification requirements if human remains are discovered. Contents of this Chapter are at: Missouri Revised Statutes Chapter 194. This Chapter was referenced by a website "The Law and American Indian Grave Protection" that has a Summary discussion of Missouri Laws §194.400 through §194.407, §194.408 through §194.409 and §194.410. Citations to certain subsections of particular interest to families and genealogists are:
1. Any person, corporation, partnership, proprietorship, or organization who knowingly disturbs, destroys, vandalizes, or damages a marked or unmarked human burial site commits a class D felony.
[A Class D felony carries a term of imprisonment not to exceed four years.]
Other statutory provisions:
"137.100 The following subjects are exempt from taxation for state,
county or local purposes:
(3) Nonprofit cemeteries;"
"Nonprofit" cemeteries presumably include the small, abandoned family cemeteries as well as association, religious, etc.; i.e. everybody except a for-profit corporate-owned enterprise. However, "nonprofit" is not specifically defined in Section 214.270 or elsewhere I know about. "not-for-profit" is used in context in Subsection (5) describing a "Cemetery association" but it seems reasonable that "nonprofit" would include religious, etc. and would not necessarily require formal 501(c)(3) or (4) status.
A problem with old, abandoned, endangered cemeteries and, consequently, protecting them is holding of title to the underlying land. The title may be unclear for various complicated reasons. Section 214.200 - Title, how obtained to lands used for burial purposes. provides a procedure to obtain a formal, clear title to land that has been "used as a public or private burial ground for a period of ten years or more." The procedure requires following the requirements of Section 214.080 which says that the taking proceeds "... in the same manner as provided by law for condemnation ..." and, consequently, requires fair compensation to land owners. I presume "condemnation" is is essentially synonymous with the term "eminent domain" and that condemnation procedures are codified elsewhere in the statutes. However, Section 214.200 does not state to whom the title is vested; is it an individual person, the state, the county, the "public", etc.? That MAY also be specified in the condemnation laws.
Section 214.283 is an attempt to ensure that the state has an accurate listing of all cemeteries, excepting family burial grounds (though it probably should include them). This requirement apparently includes religious, fraternal, non-profit association, etc.
Section 214.283.1 provides:
"Any person, entity, association, city, town, village, county or political subdivision that purchases, receives or holds any real estate used for the burial of dead human bodies, excluding a family burial ground, shall notify the office of the endowed care cemeteries of the name, location and address of such real estate ..."Section 214.283.2 (2) provides:
"Any person, family, group, association, society or county surveyor may submit to the division, on forms provided by the division, the names and locations of any cemetery located in this state for inclusion in the registry. No fee shall be charged for such submissions."The above referenced "office of endowed care cemeteries" (lower case) is an actual, existing, official department title "Office of Endowed Care Cemeteries" (upper case) under the Missouri Division of Professional Regulation The office publishes online a current list (PDF) of "Exempt Cemeteries" which are those specifically exempted from regulation by statute (214.270(4)); i.e.
(4) "Cemetery", property restricted in use for the interment of the human dead by formal dedication or reservation by deed but shall not include any of the foregoing held or operated by the state or federal government or any political subdivision thereof, any incorporated city or town, any county or any religious organization, cemetery association or fraternal society holding the same for sale solely to members and their immediate families;(However, use of the word "cemetery" in other parts of the statutes states directly or indirectly that it applies to all cemeteries, except, possibly, family or private cemeteries.) Presumably, there is another list, not on the internet, of non-exempt cemeteries, which may be a master list including all. The website does not make this clear, nor is any description of the exempt list provided. The extent of inclusion and status of smaller abandoned, rural and family cemeteries is not stated.
(4) "Cemetery", property restricted in use for the interment of the human dead by formal dedication or reservation by deed but shall not include any of the foregoing held or operated by the state or federal government or any political subdivision thereof, any incorporated city or town, any county or any religious organization, cemetery association or fraternal society holding the same for sale solely to members and their immediate families;However, the word "cemetery" or "cemeteries" is used in various places in the statutes in its common, all-encompassing scope in seeming contradiction with this definition. The purpose of restricting the word "cemetery" to exclude all of the enumerated categories is unclear. Sounds like all that is left from the exclusion list are for-profit cemeteries and family cemeteries.
Following are other items related to cemeteries in Missouri that are outside my primary interest of the small, abandoned and endangered cemeteries, but may be of some use and assistance. There does not seem to be any special interest website on the internet for people needing information on the subject of Missouri cemeteries.
Some cemeteries attempt to require that the base of any monument be installed by the cemetery, often at exhorbitant prices, bearing no relationship to actual cost. Even the St. Louis Archdiocese Catholic Cemeteries website still has a rule requiring their personnel to perform the foundation installation. See their online rules under heading "GENERAL CEMETERY CONDITIONS" Item #10.The courts have ruled that practice as illegal on anti-competitive grounds. Monument dealers are allowed to install foundations subject to "reasonable rules, regulations and specifications." In Missouri, a controlling case is: Roseborough Monument Co. vs the Memorial Park Association, 666 F.2d 1130 (8th Circ. 1981 Roseborough II, cert Denied, 457 U.S. 1111 1982) The following website has the legal citations: http://www.eternaljustice.com/MemorialLegislation.html and includes the following brief synopsis of the Roseborough case:
In 1981 the 8th Circuit Court ruled that the exclusive installation rules used by the 11 St. Louis area cemeteries violate Federal Anti-Trust Laws. The St. Louis decision, in effect, permitted anyone to perform foundations and installations subject to reasonable rules, regulations and specifications. On 6/7/82, the Supreme Court denied a petition for review and thereby confirmed the earlier decision. There was a subsequent appeal in the 8th Circuit Court (Nos 83-1498 and 83-2351 submitted Nov. 18, 1983, filed May 22, 1984 that related to damages but did not change the basic ruling of the previous decision."The complete case is reported at the following website: http://bulk.resource.org/courts.gov/c/F2/666/666.F2d.1130.80-1963.html
Note that the Roseborough case was decided in the 8th Federal Circuit, which jurisdiction includes St. Louis and that appeal was denied by the U.S. Supreme Court. So it stands. A similar case, known as the Mack Moore case, was decided in the 9th Federal Circuit also in favor of monument dealers and may be persuasive, but is less authoritative for the 8th Circuit than Roseborough.
If a cemetery attempts to enforce a base installation policy, ask to see if they have their rules in writing. Then send a copy of the case to the cemetery manager. If that fails, then contact the consumer protection agencies for Missouri, St. Louis City and St. Louis County which may include the state Attorney General office.
Missouri law does not require use of outer burial vaults. However, cemeteries are free to establish their own regulations and may the use of outer burial vaults, to prevent grave collapse which can present a hazard to visitors and maintenance personnel. A simple concrete box usually suffices.
Occasionally, cemeteries attempt to refuse to give out information about burial records. Sometimes they even attempt to use the privacy protections of "HIPAA" as an excuse. It is a totally bogus claim. "HIPAA" ONLY applies to health care providers and to medical records. This is clear and unambiguous in the federal legislation. Numerous summaries and analyses are posted on the internet about it. Examples:
Laws vary by state. Missouri law provides clear and unambiguous language in Missouri Revised Statutes, Chapter 214 Cemeteries, Section 214.040, Part 2:
The cemetery operator shall cause reasonable assistance to be provided to burial lot or interment space owners in locating their lots or spaces and to the family or other interested persons in locating the place of burial or interment of deceased persons whose remains are buried or interred in the cemetery.The full statute Section at: Missouri Revised Statutes, Chapter 214 Cemeteries, Section 214.040, Parts 1 and 2.
Offhand I do not see who is responsible to actually enforce the statute and I do not see what penalties are imposed for violating specifically Section 214.040. One may try the following:
In suburban Cook County, Illinois a couple years ago there was a major scandal where Burr Oak Cemetery employees were digging up graves and reselling the plots. Their records were a mess. When a cemetery refuses to release burial records, something very suspicious is going on and they should be investigated.
If none of the above options is successful or you get stonewalled by the bureaucracy, you clearly have the right to go to court (what the lawyers call "standing") and request a court order for the cemetery to provide the information you seek. You could file pro se. If you need to hire a lawyer, it is possible the court would award attorney's fees. There may also be a free legal clinic or advocacy organization in your area.
Generally, when people purchase a cemetery plot, they are only acquiring a "right of interment" and not actually buying real estate outright. However, there are exceptions and one may be actually purchasing real estate. One must examine the terms of the contract. However, Missouri has a particular 214.030. Cemetery lots, conveyed by deed. statute that requires:
214.030. The cemetery lots owned by such county, city, town or village shall be conveyed by deed signed by the mayor or presiding commissioner of said county, city, town or village, duly attested by the clerk of such county, city, town or village, or other officer performing the duties of clerk, and shall vest in the purchaser, his or her heirs and assigns, a right in fee simple to such lot for the sole purpose of interment pursuant to the regulations of the council or commission, except that such fee simple right may be revested in the county, city, town or village pursuant to section 214.035.So, in this particular situation of a city or county cemetery, actual fee simple interest to the plot is being transferred.
The state of Missouri does not require embalming. There are, however, a few rules that need to be followed if one wishes to avoid it. These rules are a combination of requirements encoded in Missouri state statute (Chapter 194), Missouri Health Department and Division of Professional Regulation (DPR) regulations and are described in the following publication: DPR Rules and Regulations
The pertinent rules in Missouri are:
Other points of note:
None of the other states universally require embalming as well, though they are all different when it comes to all the various circumstances surrounding death and post-mortem handling and disposition of the body. A useful recap is at: Embalming rules by state Use of the phrase "Waiting Period" in this document is a little unclear; I interpret it to be: "The number of hours that may elapse between death and when the corpse must be embalmed or refrigerated." Note that this does not provide citation to underlying state statutes and regulations. Also, statutes and regulations can (and usually do) change.
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