While a residuary clause in a will is designed to ensure all assets are distributed according to the testator’s wishes, there is a significant exception that often goes overlooked: family cemetery plots where a loved one has already been laid to rest. In these cases, the standard “catch-all” provision of a residuary clause may not be sufficient to transfer ownership or burial rights, highlighting an important nuance in estate planning that merits careful attention.
The Limits of a Residuary Clause in Estate Planning
A will is a critical component of any comprehensive estate plan because it can be used to transfer virtually any category of asset a person individually owns upon their death. Most wills include a residuary clause, which provides for the transfer of any asset not specifically gifted elsewhere in the will.
A residuary clause includes language conveying all of a person’s property (without specifying exactly what property is being conveyed), which generally ensures that all assets that may pass by will go to a person’s named beneficiaries, rather than following the law of intestate succession. In fact, wills are often used to fill in the gaps that may be left by other testamentary documents like trusts and beneficiary designations in order to ensure that all of a person’s property is subject to their estate plan and eventually reaches their intended beneficiaries.
The Statutory Exception: Health & Safety Code § 8650
However, there appears to be a notable exception to the general effectiveness of a residuary clause, relating to an unlikely and specific type of asset: family funeral plots in which the remains of at least one family member are already interred.
Pursuant to Health & Safety Code section 8650, once a relative is interred in a family plot, the surviving owner of the plot may only convey the unused portions of the plot by specific devise in a will or by written instructions to the cemetery. Though no case law confirms that a residuary clause would not be effective to transfer the unused portions of the plot, the plain language of the statute appears dispositive: “If the owner dies without making disposition of the plot either in his or her will by a specific devise, or by a written declaration filed and recorded in the office of the cemetery authority, any unoccupied portions of the plot shall pass according to the laws of intestate succession…”
Special Legal Rules Governing Cemetery Plot Ownership
This is one of several special rules governing ownership of cemetery plots, which require them to be treated differently from other categories of assets.
- Cemetery plots are generally considered the sole and separate property of the person named as owner (Health & Safety Code §8600).
- The spouse of the owner—and any subsequent spouse, after the initial spouse’s death and burial—has the right to be interred in any unused portion of the plot (Health & Safety Code §8601).
- Transferring a cemetery plot doesn’t mean transferring title to real property; it only conveys burial rights. Pomona Cemetery Ass’n v. Board of Sup’rs of Los Angeles County (1942) 49 Cal.App.2d 626, 630.
- If cemetery plots are owned jointly (as joint tenants), each owner has a right of burial in the plot. Even when ownership of burial rights is transferred due to joint tenancy rules following an owner’s death, the deceased former owner still retains rights to the asset—specifically, the right of internment (Health & Safety Code §8625).
Why Cemetery Plots Require Specific Gifting
These special rules exist because the sole purpose of cemetery plots is for use after death, whereas virtually all other assets exist for use during life. In this context, the requirement for specificity in at-death transfer of plots makes some sense.
However, the burial (no pun intended) of this requirement in the Health & Safety Code, rather than the Probate Code, separates it from the majority of the rules governing probate and estate planning practice. This relative obscurity may limit widespread knowledge of this niche but important exception to conventional estate planning wisdom that a residuary clause can be used as a “catch-all” for any asset not covered by other aspects of a person’s estate plan.
Practical Guidance for Estate Planners
As a practical matter, estate planning attorneys should discuss with a client whether they own (or co-own) a family cemetery plot, and whether any family members have been interred in that plot. If so, and if the client wishes to deviate from intestate succession to their assets, the family plot should be specifically gifted to named beneficiaries by will or by a declaration filed with the subject cemetery. Additionally, if a married couple own a cemetery plot, their estate plan should specifically address what happens to such asset upon the death of the first spouse, if interred there.
Otherwise, the unused portions of the plot will pass according to intestate succession by operation of law. At least for this category of asset, a comprehensive estate plan requires language of specificity rather than breadth in order to ensure the testator’s wishes are upheld.
Key Takeaways
- Family cemetery plots follow unique transfer rules that don’t apply to most other estate assets.
- A residuary clause won’t reliably transfer unused burial spaces—they typically require a specific gift or written instructions to the cemetery.
- Estate planners should confirm whether clients own family plots to ensure these assets are intentionally directed and don’t default to intestate succession.
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