Funeral and Cemetery Law class

Death by Headstone: Should Cemeteries Do More to Protect Their Visitors?


Everyone knows that the upkeep of cemeteries varies drastically across the country. Some are pristine  with the grounds well kept, while others are run down, seemingly abandoned. However, there are two things almost all cemeteries have in common despite their conditions; headstones and visitors. 

In May 2016,  a young boy was killed while playing with friends when a headstone fell on top of him in a cemetery in Glasgow, Scotland. According to the eight year old's friends, another child jumped on a gravestone to get onto a wall, causing it to topple over on top of the boy. The death lead to a full on inspection, with 500 to 900 headstones being laid flat due to safety concerns. 

The situation is certainly tragic. But it also begs the question, was it avoidable? Does a cemetery have a responsibility to prevent accidents like this from happening? There is no doubt that there are certain measures that could be taken to prevent an accident like this. For example, gates to prevent children from entering the cemetery at unsupervised times or ensuring the structural integrity of headstones  by implementing certain requirements for placement. BUT, some of the measures available would be impractical based on cost and time required to implement. Not to mention that the ownership of cemeteries ranges from public cemeteries to church ownership, one reason the maintenance of cemeteries doesn't seem uniform. 

There is also the issue of reinforcing old headstones that seem to be unstable. Should a cemetery owner be required to contact the owner of the grave site before taking action to ensure its safety? There are limitless questions regarding the issue.

Currently there is no easy solution for the safety concerns headstones pose to visitors of cemeteries. But one thing is for sure, it is an issue that both the owners of the cemeteries as well as visitors with children should keep in the forefront of their mind. 

Alston Merritt

A Free Farewell: Providing Funeral Services to the Unclaimed, Unknown, or Indigent

What happens when a person passes with no family, no funds, or no known name?

In 2015, the Warren County Coroner’s office provided for 51 burials of such persons. In that county, it is the responsibility of the county coroner’s office to take physical control of any dead persons until either the bodies are claimed by a relation or friend or the bodies are left unclaimed.

Kevin Kirby, the Warren County Coroner, has overseen 32 of such burials in this year alone, three of which were considered unclaimed bodies. Coroner Kirby waits about two weeks before burying the bodies of any of the unclaimed or indigent persons, preserving the remains in the meantime. Because Kentucky law does not allow for Kirby to cremate the remains of unclaimed bodies without a family member’s consent, he instead must keep the unclaimed bodies preserved as-is until burial, which is more expensive than cremation.

Besides being responsible for county-assisted burials through his position in the coroner’s office, Kirby also runs a funeral home in the county, J.C. Kirby & Son, through which he is able to provide the “pauper” funeral service. Each county-assisted burial consists of a simple wooden casket for the remains and a graveside burial service, for which Kirby’s office receives a $475 reimbursement from the Bowling Green-Warren County Welfare Board; in addition, Kirby pays the city of Bowling Green $100 to dig the grave.

For the less common occurrence of unclaimed bodies or unknown persons, Kirby says that his office attempts to use all possible means to either identify the person or the deceased’s relatives before burial. For the increasingly more common indigent deceased, the county-assisted funeral and burial service provides the deceased and the deceased’s family members with a funeral rite that the deceased may have otherwise not been able to afford.

Giving each of these unclaimed, unknown, or indigent persons a traditional funeral and burial service seems to be sort of a ritualistic nod to the life of the deceased. According to Kirby, “[i]t’s sad that somebody has lived a life that nobody cares or we can’t find someone. . . . It’s somebody’s son or daughter. They belong to somebody somewhere.” While it is merely the responsibility of the Warren County Coroner to provide for the simple burial of the deceased, Kirby, as well as some others, seem to have extended the traditional funeral service to those deceased who either have no family attending or would not otherwise be able to afford a funeral service.

Sometimes, despite all the economic or legal burdens, the best way to honor the lived of the unknown or unclaimed is to keep tradition alive.

Nina Banfield

Orchestra Pit at the Met Showered with More Than Just Cheers

Spooky things usually tend to happen around Halloween. Well, for some opera fans, Halloween was certainly in the air during an afternoon performance of Rossini's "Guillaume Tell" at New York's Metropolitan Opera on Saturday, October 29, 2016.

A 52- year-old man, who was seated in the first row, decided to sprinkle a powdery substance into the orchestra pit during the second intermission. According to John Miller, the New York Police Department's deputy commissioner in charge of intelligence and counterterrorism, the man, who has now been identified and is from Dallas, told other members of the audience that he was there to sprinkle the ashes of his mentor, a fellow opera lover, during the performance. 

New-York-Metropolitan-OperaMet officials were forced to cancel the rest of the "Guillaume Tell" performance on Saturday, as well as an evening performance of "L'Italiana in Algeri," so that the police could investigate the scene. Audience members were left in the dark, having originally been told that there was a technical issue during the intermission, as the Met officials decided how to proceed once the powder substance was found. Ultimately, nearly 4,000 spectators were told to leave, but as they exited, they noticed the counterterrorism unit entering the building, which was a bit alarming for some of the opera enthusiasts. Other audience members were disappointed that they did not get to experience the final Act, especially considering the fact that this opera had not been performed at the Met in more than 80 years before this season. The Met is offering refunds to the audience members that were forced to evacuate from the performance and is supposed to be open as of Monday, October 31. 

The police are still in the process of actually testing the powder that was found in the orchestra pit to determine if the powder is in fact human remains. Miller was quoted saying that while the disposal of ashes at an opera house may violate city codes, he doesn't "believe at this point that we see any criminal intent here." The Met General Manager said that this was the first time he has seen this happen in eleven years. But, Miller said in his experience, they have seen this in many public places, including monuments, stadiums and other venues, in attempts to honor their loved ones.

For an opera lover, the chance to have their ashes sprinkled at the New York Metropolitan Opera seems like the opportunity of a lifetime, or rather the after-lifetime, but obviously this poses some public health concerns, which is why the Met does not condone the continuing of this practice, as much as they appreciate those who love their performances and art. 

Alexa Gaudioso

Buying A Used Final Resting Place


Not interested in designing or building your forever home?  There is a niche market that will help you locate and bid on a slightly used final resting place. Are you desiring top-quality granite exterior, marble interior, high ceiling, and custom-made windows?  Then you may be interested in Rev. Norman Vincent Peale's mausoleum at Woodlawn Cemetery in New York City that has been vacant since the 1950s.  This modest mausoleum sleeps eight and is selling for $750,000 with the option of personalizing the entrance with your last name.

In New York, where the city revolves around real estate, it stands to reason that big-money prices and maxims like “location, location, location” figure in death as well. Mausoleums change hands just like apartments and townhouses.  And with cemeteries running short on space, cemetery officials have been known to call descendants who own long-empty grave-sites or mausoleums, and suggest a sale. 

Several mausoleums at Woodlawn Cemetery have been home to famous poets, musicians, and business tycoons.  These mausoleums can often raise their asking price due to their attached reputations and legacies.  William B. Leeds, a tin and railroad tycoon, had his mausoleum designed by famous architect in the early 1900s; Woodlawn Cemetery is asking for $4.2 million.  However, Woodlawn offers smaller mausoleums for a nominal $534,000.

Susan Olsen, the cemetery historian, has found letter records that show the "change of hands" of mausoleums at Woodlawn Cemetery throughout its existence.  These letters show the intent of future residents to build or buy mausoleums on the cemetery grounds.  There is also a history of transition of bodies from "receiving tombs," temporary resting areas while mausoleums are being built, to there years in the mausoleum, to the family deciding on a new resting destination for their dearly departed.

Treating burial spots as a recycling business is a new perspective on cemeteries.  It will be interesting to see if this trend continues to spread to other states as the competition for burial locations exponentially increases

Rivver Cox

Texas' New Fetal Remains Rules Implicate Legal, Religious, and Cultural Tensions

Just after Thanksgiving, Texas joined Indiana in requiring aborted fetuses to be cremated or buried, regardless of gestational age. The new rule, championed by Governor Greg Abbott and promulgated by the state’s Health and Human Services Commission, bars disposal of fetal remains in sanitary landfills.

After receiving considerable pushback, the commission clarified that the rules do not apply to abortions or miscarriages that occur at home, and do not require birth or death certificates to be filed. Still, opposition to the new measures is sizeable. Activists argue that requiring burial or cremation is expensive and that such costs will necessarily be passed on to patients. As such, opponents allege, the requirements are nothing more than a thinly veiled attempt to restrict women’s access to abortions statewide.

These issues are complicated, for they implicate the perilous nexus between strongly held religious and cultural beliefs, on the one hand, and the law, on the other. At what point does a fetus stop being simply a mother’s tissue and become a living thing with all the requisite rights accorded to it? And, if the fetus is not yet anything more than tissue, what control may a woman exercise over it? Unfortunately, the law provides does little to resolve these uncertainties.

The issue is further complicated in that neither human tissue nor human remains are considered property in the typical sense of the word. If not property, what are they? Can they be owned? If so, by whom? The law, again, is of little guidance. As Professor Tanya Marsh noted, “[t]he question of what we own of ourselves – what is the legal status of biological material that’s been removed from us – there’s very little law about that, except to say that it’s not ours.”

Thus, it appears as exists no definite solution to the controversy in Texas. For if there exists presently unresolved legal ambiguities, what hope is there for reconciling associated religious and cultural tensions?

Mickey Herman

Funeral Homes Saves Your DNA


When I think of the purpose of a Funeral Home, I think of a business that aids one in the process of celebrating the life of a loved one and ultimately disposing of the remains in the desired way. But what if I told you that one Funeral Home is giving you one last chance to preserve the deceased's DNA? That is what one Funeral Home in Santa Barbra is aiming to do. For the low price of about three-hundred dollars, scientist will preserve the deceased's DNA indefinitely, opening up a number of doors for the field of genetics. 

Not only is this option of saving DNA significantly cheaper than the traditional cryogenic options, it is also super simple. All the scientist's at Lakehead University in Canada require the funeral home to  do is take a gentle cheek swab and send it off to the lab for processing and storage. This easy procedure can contribute to discovery of things such as genetic mutations, links to genetic diseases, and ultimately information that can help lead to prevention of these inherited illnesses. It may also lead to the discovery of paternity and assistance in mass-casualty disasters. Not only are they beneficial in this way, but the sample can be tested multiple times, making the idea of it even more appealing. 

Discovering the above things is not the only draw of the practice. Scientist's also say that the family of the deceased receives a beautiful glass vial of the DNA accompanied by a degree of authenticity, both incentives to participate in the practice. They can even have it made into jewelry if they so choose. So if preserving your loved one's DNA when they passover seems beneficial to you, keep an eye out for this expanding market. 

Alston Merritt

Historic Grave Markers Do Not Make Good Lawn Decorations


According to Lew Keen of the Newport Historic Cemetery Advisory Commission, theft of historic grave markers for use as patio stones and well covers, among other things, is a chronic issue. In October, five long-missing historic gravestones were finally returned to the Colonial-era cemetery Common Burying Ground in Newport, Rhode Island.

Under Rhode Island law, it is a felony to steal a gravestone, and consequences can include prison for up to three years, a fine of up to $5,000, and paying the cost to repair the grave. R.I. Gen. Laws § 11-20-2 (“Every person who shall willfully and maliciously . . . remove any . . . gravestone . . . shall be guilty of a felony and shall be imprisoned not less than one year and not exceeding three (3) years, and/or be fined no more than five thousand dollars ($5,000), or both and shall, in addition to imprisonment and/or fine, be ordered to make full restitution to any person, business or entity incurring the expense of repairing the grave.”).

Four stones were from 1835 and earlier, marking the graves of a Newport woman, Elizabeth Cook (1835), and her children Betsy (1799), Isaac (1803), and Edward (1804). The Cook family stones were last seen at Common Burying Ground in 1874. The four gravestones were found in a yard during a home renovation in the 1980s. The homeowners stored the gravestones in the basement until they moved. Pam Kelly discovered the stones when she purchased the home from the previous owners. 

The oldest stone returned in October was for a 1-year-old child, William Mayes III, who died in 1690. This stone was found in August also in a yard by Stephanie Pallas in Pennsylvania. Pallas was landscaping, came across a flat stone in her yard, and realized it was a gravestone that belonged in Rhode Island. The stone had been missing from Common Burying Ground since 1979.

A struggle with returning a gravestone all the way from Pennsylvania to Newport was the cost and reliability of transportation methods. Gravestones are not light; Elizabeth Cook's stone weighed about 450 pounds. Hiring someone to deliver Mayes' stone would cost $1000. Shipping via FedEx was only $100, but the Keen was not convinced the stone would be safe. Had the original thief been arrested and convicted, that person would have been responsible for the cost of transportation. Luckily, Bob Butler, a member of the Rhode Island Historical Cemetery Commission came to the rescue, agreeing to pick up the stone and return it to Newport safely in a pre-planned trip. 

All five stones have been reset in their proper places in Common Burying Ground. Students in a historical cemetery preservation class volunteered to reset the Cook family stones, using a crane due to their weight.

Sarah Saint

Proposed Muslim Funeral Home Pits County Officials Against Establishment Clause

No ground has yet been broken, but a Muslim funeral home in Georgia is already facing vocal opposition. The facility—which would be the first of its kind in the state—is part of a multi-stage development recently announced by Al Maad Al Islami, a nonprofit corporation led by Imam Mohammad Islam. The funeral home and an accompanying cemetery constitute the first stage, set to be built along Highway 162 in Newton County, located southeast of Atlanta. According to Islam, the second stage of the project would include building a mosque on the site. Depending on the availability of additional funding, a school and public park may round out the project.

Though surely applauded by many, the plan is also facing considerable opposition. Newton County Commissioner John Douglas has expressed his reservations about the project, claiming that “[a]ll the emails [he’s] gotten . . . have been negative for various and sundry reasons.” Among them – a concern that the funeral home, cemetery, and mosque might prompt federal authorities to begin settling refugees in the area.

Douglas’ qualms, however representative and loudly voiced, will prove impotent against both local and federal laws that protect religious organizations, including cemeteries, from discrimination. According to the Newton County Zoning Administrator, both churches and cemeteries are permitted uses on the property in question.

More importantly, as at least one county official has noted, “federal law prohibits [government] from imposing regulations on one religious development and not others.” In fact, in both Larson v. Valente and Board of Education of Kiryas Joel Village School District v. Grumet, the Supreme Court emphasized that preferring one religion over another violates the Establishment Clause of the Constitution.

Therefore, because Newton County does not limit where houses of worship may be built, and because a Christian church already exists across the street from the planned development, any governmental action attempting to impede Al Maad Al Islami’s development will likely run afoul of the Establishment Clause.

Mickey Herman

No Man Left Behind

On Thursday, November 10, 2016 a funeral was held for a two Vietnam veterans with no living relatives. However, they were not laid to rest alone. The funerals for Clifford Ray Dudley and Marine Lance Cpl. Dennis Ray Ashley Corpus was held in Christi, Texas at the Coastal Bend State Veterans Cemetery. When no next of kin were found, the cemetery made a call to the public to attend the funerals. They posted on their Facebook page, “We do NOT leave Veterans behind.” About 400 people showed up to mourn the veterans.


Similarly, last Friday November 11, 2016, another funeral was held in Texas for a Navy veteran with no relatives. Richard Lee Anderson served in the navy from 1996 to 2002, and although funeral director Robert Falcon tried to find his family, it was to no avail. “At such a young age we thought that we would have no problem with trying to locate family and unfortunately it's just been very unsuccessful,” Falcon told Fox 7.

“If a veteran passes away at a VA hospital or veterans home, and no one claims him/her as a family member, the staff will work with the state or national cemeterys, to ensure that there is a plot or urn provided, and military funeral honors for that veteran… Funeral directors will also call the morgue, or vice versa, and they in turn will contact the nearest veterans cemetery, and ask them to check to see if that person was a veteran.”However, they are under no obligation to contact anyone to attend the funeral. Regardless, the tradition has been held for years.

This July about 200 people in New York went to pay their respects to a 91-year-old homeless veteran with no known relatives. One of the people in attendance highlighted the importance of the act “We are connected through our service and through our sacrifice. Look around now, she has 200 or so family members. As long as you’re a veteran you have friends and family everywhere and you’re never alone.”

Debora Flores Franco

Pour Momma down the drain

Some people think that a method that reduces a body to a greenish-brown liquid and bone fragments is a barbaric way to say our final goodbyes to a loved one. Alkaline hydrolysis is a chemical process that uses heat, lye, pressure, and circulation; the body is put inside a steel vessel with about 80 gallons of water that is heated up to 300 degrees. In a few short hours, most of the body dissolves into liquid and the remaining bone is ground into ash.

Does that sound any more gross than, let’s say, putting a body into a brick-lined oven and exposing it to intense heat and fire that can reach temperatures of almost 2,000 degrees Fahrenheit? Almost half of us choose cremation, which, to be blunt, is basically incineration. Then there is the option in which bodily fluids are removed and replaced with a formaldehyde-based chemical solution. Our loved one’s eyes are then glued shut, the jaw is sewn or wired shut, and the corpse is put on display (usually wearing more make-up than the person ever did in life). Instead of letting the departed body go off with its soul (if you believe that), embalming basically preserves the body until the coffin is placed underground. (Does anyone think about what happens to the body at that point? That is really gross.)

In contrast to these complicated and unnatural methods of disposition, alkaline hydrolysis, which is more palatably referred to as “green cremation” or “bio-cremation” accelerates the ordinary decay process. Short of just allowing a body to decay naturally, green cremation is the most environmentally-friendly process available. It reduces greenhouse emissions by using less electricity and gas than a traditional cremation and produces no airborne emission of mercury in contrast to cremation. So, for all of us who are so careful about reducing air pollution by recycling and driving a Prius, why not make one final green gesture? And, with a green cremation, your family can still scatter your ashen remains over one of your favorite stomping grounds or keep an urn on the fireplace mantle.

There are thirteen states in which green cremation is legal, including Minnesota, Florida, Oregon, Georgia, Illinois, and Maine. Minnesota was the first to approve its usage. In the early 2000s, the Mayo Clinic began using the process for disposing of the bodies that had been donated for medical research. Minnesota defines alkaline hydrolysis as a separate process for disposing of a human corpse in its statutes, but most states have simply broadened their definitions of cremation in the statutes to permit “other dissolution processes”. However, there is still limited usage of green cremation in these states in which it is legal.

The problem is marketing. Who wouldn’t want a method of final disposition that is simple, efficient, cost-effective, natural and good for the environment? That does sound a lot better than pouring momma down the drain.

Lisa Roach