* Department of State, Division of Cemeteries, Cemetery FAQs

Q:     Are all cemeteries regulated by the State of New York?

A:     No, the Division of Cemeteries and the New York State Cemetery Board regulate only those cemeteries that are incorporated under the Not-for-Profit Corporation Law.  Cemeteries that do not fall under their jurisdiction include religious, municipal, private, national and family cemeteries.

Q:     Can a cemetery refuse burial?

A:     Yes, but only under three conditions - all involving  nonpayment.  The are the following:

          1. Nonpayment of the total purchase price of the grave or lot;

          2. Nonpayment of the burial (interment) charges;

          3. Nonpayment of an authorized lot tax.

These three conditions apply only to those cemeteries under the jurisdiction of the NYS Cemetery Board.

Q:     Can someone be buried on private property?

A:     While some communities may have local regulations on this matter, there are no state regulations concerning burial on private property.  However, the New York State Sanitary Code (10NYCRR, Parts 100-158) does define the distances required between cemeteries and water sources (which vary from district to district).  Anyone wishing to make burial arrangements on private property should check with his or her local government officials.

Q:     What is the New York State Cemetery Board, and what are its functions?

A:     The NYS Cemetery Board oversees the Division of Cemeteries' operations and administers the New York State Cemetery Law.  The cemetery law sets standards for the establishment, maintenance, and preservation of burial grounds in New York State.

The Cemetery Board is made up of the New York State Secretary of State, the New York State Attorney General and the New York State Commissioner of Health.

Q:     Can I choose how my remains will be disposed of?

A:     Yes, you have a choice of how your remains will be disposed, including cremation, burial, and entombment.  Written instructions explaining your wishes are recommended.

Q:     Are there any rules on heir ship regarding unused graves on family plots?

A:     Burial rights obtained through inheritance should be recorded with the cemetery.  Section 1515(b) of the Not-for-Profit Corporation Law regarding ownership of lots states that, unless specifically devised by will, (including reference to the specific lot number, section number, cemetery name), a cemetery lot is inherited by the descendants of the lot owner.

Q:     What are trust monies, and how can they be invested?

A:     Trust monies are funds set aside, and the income is used to preserve cemetery grounds.

Trust investments are regulated by the Estates, Powers, and Trust Law of the State of New York.  The law requires that cemeteries entrusted with trust monies ensure that the principal shall not be lost.  Securities may take the form of interest-bearing bank accounts, certificates of deposit, stocks, and/or bonds.

Q:     Can monies be set aside for the eternal care of the cemetery?

A:     In those cemeteries under the jurisdiction of the Cemetery Board, two principal trust funds exist: the perpetual care fund and the permanent maintenance fund.  The perpetual care fund consists of individual and varied amounts of contributions by lot owners.  The permanent maintenance fund is funded with a portion of current lot sale receipts and $35 from every interment.

The important distinction between these two funds is that  perpetual care funds are used for the care of individual graves, plots, mausoleums, or columbarium spaces; while permanent maintenance funds are for cemetery care overall.  Only the interest from these funds can be used for maintenance; the principal must remain intact.

Q:     What are service charges and how are they regulated in cemeteries?

A:     Service charges are fees charged by cemeteries for performing any service after the purchase of the grave or lot.  The Cemetery Board must approve any service charge increases proposed by incorporated cemeteries.  Requests for increases must be fully documented to be considered by the Cemetery Board.

Q:     Is there any state requirement on the depth of graves?

A:     There is no state requirement specifying the depth of a grave, although there may be location regulations that apply.  For example, the City of New York requires that "when human remains are buried in the grounds, without a concrete vault, the top of the coffin or casket shall be at least three (3) feet below the level of the ground." (two(2) feet in the case of a concrete vault)

Q:     Is a concrete vault or grave liner a requirement for burial?

A:     A cemetery corporation may not compel the use of any particular outer enclosure, except that a cemetery may require the use of a concrete burial vault, or, at the option of the customer, a concrete grave liner under the following conditions and restrictions:

• The customer must have purchased the lot after January 1, 1985;
  
• The requirement must be stated prominently in writing and a written statement must be given to the customer in advance of the signing of the agreement to lot purchase a grave or lot;
  
• A lot owner may purchase the grave liner from any source including the cemetery;
  
• A cemetery may not sell burial vaults.
  

Should a lot owner object to the use of the required concrete vault or grave liner at the time of interment based upon religious belief, the cemetery must, without question, cancel the requirement; provided, however, that the cemetery may impose at the time of interment a reasonable fee for the periodic refilling of the grave.

Q:     Is there any time limit for filling a grave after burial?

A:     While there is no legal requirement on the specific time period for back filling a grave, the Cemetery Board does require that it be completed with reasonable dispatch.