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. It will not list all laws, nor will it describe any in extensive detail. This is just a general, not comprehensive, overview and highlighting of certain laws that may pertain to those smaller cemeteries and not all cemetery laws. Usually in response to questions, some random topics are discussed at the end.
Those small, historic family burial grounds often suffer multiple problems which include:
My own experience has been that land owners have been very nice about allowing visitation and maintenance to cemeteries surrounded by their land, but it is common courtesy to let them know what you are doing there. Where possible, advance notification and arrangement is always appropriate and appreciated. However, in those few isolated cases of hostile land owners, knowing the law, its statutory citation and enforcement options may be necessary.
Overall, protection provided by cemetery laws in Missouri is better than what seems to be the case in many other states. However, the organization of the statutes seems a bit haphazard and does not seem to always follow a logical flow. Also, a few terms are defined and re-defined depending upon the section involved. More on that later. So, one needs to examine the contents of the entire applicable chapter when researching this (or any) area. A section of importance or key definition may be located in a seemingly random place. So, one must examine the entire list of titles. It may also be necessary to flip back and forth among sections and paragraphs to capture the full, accurate picture.
Be advised: I am NOT a lawyer (anywhere), 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 licensed Missouri attorney experienced in this area of the law. Be further advised that knowledge, interpretation and purported claims about the law vary. This is especially true of funeral directors. Do not hesitate to obtain a second or even third opinion if any answer you receive is not satisfactory. Also, laws can (and do) change. I do not expect to keep this page current on a continuing basis and the revision date posted does not mean that I have re-surveyed the laws at that time. Note that a substantial portion of the Missouri statutes, particularly the additions effective August 28, 2010 (HB2226), primarily concern regulation of endowed care and pre-need care funds managed by larger cemeteries, so are not covered here.
The primary Missouri statutes governing cemeteries are in two Chapters of Missouri Revised Stautes (RSMo): 214 and 194. Additional law, through administrative authority, may be found in the regulations of the Missouri Division of Professional Registration (DPR), although those regulations mostly concern current burial activities (i.e. funeral homes), pre-planning funding and operation of large endowed-care cemeteries. Case law, which is based on decisions of the courts arising from legal disputes, may also be a factor. With one exception (described later involving cemetery regulations), I have not examined any Missouri case law involving cemeteries.
The predominant statutory RSMo Chapter involving cemeteries is Chapter 214 entitled "Cemeteries." The first link, later, 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.
Other than listing them, I will not attempt to prepare recap descriptive summaries of each law, a brief or a cross-reference based on subject, especially since the existing wording is generally (at least in the areas of our interest) brief, straightforward and understandable by the layperson. For those concerned about smaller family cemeteries, and family history research in general, the statutes contain provisions that address these points of interest:
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 of all statutes is available at Missouri Revised Statutes. Citations to certain sections 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 sections 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, fraternal, etc. and would not necessarily require formal 501(c)(3) or (4) status. Is municipal a wildcard?
Regulations regarding embalmers and funeral directors are published by the Missouri Division of Professional Registration (DPR) (authorized through 214.392): DPR Rules and Regulations. These generally apply to operation of funeral homes and handling of the deceased. Note that this URL embeds the date of the document which is November 2012. I do not know how they will handle URL's, their display and main page links for updated versions.
Generally, the wording, reading and interpretation of the above laws is straightforward. However, if a dispute arose, and lawyers being the weasely creatures they are, any ambiguity or loophole could be exploited. That is why clear and comprehensive definition of terminology is necessary. Also, a few terms are defined and re-defined to apply in the context of a specific section or series of sections, so readers need to be alert for such changing landscape. Following then are a few observations about terminology which, since they are entering the arena of technicalities, may not be of interest or necessary use to most people.
Section 214.270 contains a list of Definitions. However, this list only applies to sections 214.270 to 214.410, those sections only involving a "cemetery" which it defines as:
(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;This definition and application of these sections 214.270 to 214.410, as evidenced by their content, appears to target just large cemeteries which are likely to be owned by for-profit companies, are incorporated, solicit pre-need contracts and/or have an endowment fund for perpetual care, thus exempting all others. However, note that this definition does not explicitly exclude small private cemeteries or small family cemeteries, either with currently active burials, inactive but maintained or abandoned. Note also that it defines by exclusion, rather than inclusion, which could be a problem for items not considered or changing circumstances. Depending on potential unforseen circumstances, it may leave some cemeteries in legal limbo.
Section 214.131 includes the following:
For the purposes of this section and subsection 1 of section 214.132, an "abandoned family cemetery" or "private burying ground" shall include those cemeteries or burying grounds which have not been deeded to the public as provided in Chapter 214 [presumably predominantly 214.090], and in which no body has been interred for at least twenty-five years.This section seems to specify that "abandoned family cemetery" and "private burying ground" are equivalent terms in concept, treatment and application of the law although there would be a slight difference in that a "private burying ground" may not necessarily be "abandoned" as in unmaintained. "Private" is not elsewhere defined or re-defined such as in Section 214.270.
I could not find where "public cemetery" is defined although it is used frequently throughout Chapter 214. Ordinarily, "public" would be considered as the antonym of "private," a binary condition, but "private cemetery" as described above appears to be specifically equivalent to a family cemetery. This leaves open (at least to me) the question of where religious and fraternal cemeteries fall. They do not seem to be open to the "public" yet do not fall within the explicit definition of "private." Is there a potential loophole here?
Here is where a term, "abandoned cemetery," is re-defined for use in a specific section:
2. As used in this section [214.205], the term "abandoned cemetery" means any cemetery, except one described in section 214.090 [private/family], in which, for a period of at least one year, there has been a substantial failure to cut grass or weeds or care for graves, grave markers, walls, fences, driveways and buildings or for which proper records have not been maintained pursuant to section 214.340.
A short list of definitions leads off Section 214.550, but the scope is limited to church-affiliated cremation scatter gardens.
As boasted above, I am not a lawyer. The Missouri cemetery laws are good, better than many states, but the wording does seem to have some issues. As if all the above is not confusing enough by itself, during my reading of some of these laws I have noted some items and wording that seem vague, incomplete, inconsistent, incongruent, etc. Where these conditions exist, lawyers enter the picture and outcomes may be unpredictable and adverse. They also seem to be somewhat haphazard in organization and comprehensiveness of content, so researchers should look at the entire content of the respective Chapters to ensure all bases are covered. Following are a few points, additional to the above definitional issues.
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 specifically state to whom the title is vested; is it an individual person, the state, the county, the "public", etc.? I suspect that it would vest with the county, similar to establishment of a new private cemetery per 214.090. The condemnation laws may affect the disposition as well.
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 Registration The office publishes online a current list (PDF) (very long, 31 pages and counting) 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.
Missouri currently allows new "home burials" on private land but there are requirements. The designated burial plot must not exceed one acre. (That's a lot of graves, BTW.) Any burial plot must be at least 150 feet from any water supply and 25 feet from any power lines or land boundaries. A deed must be drawn up and the land deeded in trust to the County Commission. Local county ordinances must be checked before committing any land. If the land is located within the boundaries of a municipality, those laws need to be checked as well; however such family cemeteries are likely to be prohibited within those bounds and would require special zoning exemption which would be granted only in very exceptional circumstances (like if you are Elvis). The owner may convey to the county a deed in trust to be held in perpetuity for benefit of the family and descendants. The deed must be filed within 60 days. Section 214.090 Family burying grounds, how secured.
Construction of above ground crypts or mausoleums in private family cemeteries is an issue that has occurred and that would likewise also be subject to county requirements. It is probably a very bad idea anyway due to potential for vandalism and continuing maintenance needs. Local monument companies should be consulted for answers on that one.
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" (which is the official legal term of direct ownership) 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 enacted in Missouri state statute (Chapter 194) and Missouri Health Department and Division of Professional Registration (DPR) regulations. These are described in the following publication: DPR Rules and Regulations
The pertinent rules in Missouri are:
There may be different rules for common carrier interstate transport (versus intrastate just within Missouri).
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 detail 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 page does not provide citation to underlying state statutes and regulations. That may not be accurate. Also, statutes and regulations can (and usually do) change and there is no assurance that this list will be updated.
DPR regulations state (November 2012 edition) that sale of caskets and other funeral merchandise does not require being a licensed funeral director. Probably result of pressure from Costco and the like who now sell caskets. (Really.) Federal law requires funeral homes to accept caskets from outside suppliers and not charge extra for accepting them. It also requires funeral homes to present a printed price list.
Funeral home markup on caskets is two, three, four or more times their wholesale cost. Federal law (FTC) requires them to accept caskets from outside suppliers and there are plenty of options to choose from. There are many sites on the internet where one may purchase caskets, urns, burial vaults and other related merchandise. These are the same name-brand items, from the same manufacturers, the undertakers sell at half to a third of the price. They generally guarantee delivery in a day or two, depending on the time of day when the order is placed and will likely be shipped from the same distributor that services the funeral home. Further, the selection is vastly better than what one would ordinarily be presented with by a funeral director. Many additional options are also available ranging from a plain pine box to coffins hand-crafted by monks. Planning ahead before the time of actual need can be especially important for this.
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