There is often an overlooked asset that needs to be divided or assigned to one of the spouses in a divorce settlement—and that is a cemetery burial plot. A burial plot is treated for most purposes as being unlike any other piece of real or personal property. One does not own the actual land. One only buys the right to be buried in the burial plot so long as the cemetery remains a cemetery. The right to be buried in a certain plot is known as “the exclusive right of sepulture,” and cemetery administrators must follow specific laws as to who can be buried in a plot.
Many people have gone to the trouble of pre-planning their funeral arrangements and have purchased burial plots. Many couples buy burial plots in both their names as joint tenants. On the death of one, the other becomes sole owner.
It’s an easy asset to forget about during a divorce, but complications can arise if the burial plot is not mentioned in the separation agreement. Until or unless one or the other releases his or her rights, either by divorce decree or with the cemetery’s form, they will share the ownership rights. Very frequently controversies arise when there has been a second marriage following divorce or death of the first spouse; the children of the first spouse and those of the second spouse are often in disagreement.
What happens if a burial plot is not assigned to one spouse? If the separation agreement does not specify who owns the curial plot, or fails to very specifically name it in legalese, the entire family may have to agree on whether a deceased family member can be interned in the plot. You can imagine the heartache and delay if there is no agreement. Therefore, during a divorce, an important document to gather is the Deed of Internment Rights. The burial plot will need to be valued, which presents its own set of complications because a plot purchased years ago may have significantly increased in value. After it is decided who gets the plot, the parties will need to list it as a marital asset to be divided and must specifically include exact information as to location, section and plot.
If neither spouse wants to keep the burial plot and they decide to sell it, they can start by talking to the cemetery. Many operate buy-back programs, and some even have first-right-of-refusal on a plot that the original owner no longer wants. Unfortunately, many cemeteries offer only a fraction of the price that the plot is worth.
Source = Mary Salisbury / The Right Divorce Solution