Academic

Home Funeral, Backyard Burial, and the Easement for Access

By Alfred Brophy

I see the New York Times has an article on the rising number of home funerals -- and the rising number of people buried on family property, rather than in a separate cemetery.  There's something appealing about the return to family cemetery plots on land where the decedent lived.  And there's obviously a very, very long tradition of this.  (Richard Pipes' Property and Freedom reminds us that in ancient Greece, farmers were buried on their farms as a way of consecrating the soil.)

But I think there's one other aspect of this we ought to remember: in many states an implied easement for access arises in favor of family members when a person is buried on private property.  Even once the property is sold, the family members have the right of access to that property to visit the grave of their relative.  This right is recognized by statute in some states -- like Virginia, West Virginia, Alabama, and Oklahoma -- and by common law decisions in a lot of others. 

Last year I wrote about the conflict between descendants of Thomas Jefferson and Sally Hemings over access to Jefferson's grave (more here).  And I have a much more extensive treatment of the law of cemetery access ("Grave Matters: The Ancient Rights of the Graveyard.").

Full post as published by The Faculty Lounge on July 22, 2009 (boomark / email).