Family Cemetery Laws Henderson County KY

Submitted by Linda Hicks Hallmark

The following information was obtained from:
The Bluegrass Roots, Volume 22, Number 1, Spring 1995
Published in The Legacy, September 1996, Volume 3.

TWO CLASSES OF CEMETERIES - The first class includes organized cemeteries that sell lots and operate for a profit with a paid staff. This class is subject to all Kentucky laws regarding organizations and businesses, as well as laws specific to cemeteries.

The other class is "Exempt Cemeteries." These cemeteries may exist or be started on private property. To be exempt from statutory regulation, these cemeteries must meet these four qualifications:
(1) operate non-profit
(2) have no salaried employees, directors, officers or managers other than maintenance caretakers
(3) be owned and controlled by first owners
(4) not sell any pre-need merchandise or services.

One can get affidavit forms with which a cemetery may be registered with the Attorney General's office. While this registration does not provide any special protection other than general laws on cemeteries. It does provide status as an officially listed and registered cemetery. This registration will be helpful if you ever need to go to court about the cemetery. You may also want to supply, along with the affidavit, supporting documentation, such as a map, a plat and photographs. Most cemeteries which family researchers are concerned about finding and preserving would fall in the "exempt" class.

MOVING BURIALS - An Attorney General's opinion on what property owners must do if he has an abandoned cemetery on his land which he wants to remove and relocate. If the cemetery is in an incorporated city, the procedure is through the city government. Probably most of the cemeteries with which researchers and descendants are concerned are outside of cities. If the property is not in a city, the landowner must apply to the Fiscal Court for permission to move the cemetery. Or, the Fiscal Court may authorize the removal on its own volition, if it is in the best interest of the county.

An "abandoned cemetery" is defined by law as one that is "left unattended for a period of 10 years preceeding the date of resolution for removal and relocation of the graves or cemetery." The law requires that the resolution for such removal must be properly advertised in order to give relatives of the descendants an opportunity to object. If a cemetery has not been abandoned, the law prohibits the owner from doing anything which interferes with the graves within. In a leading case on the subject, the Court held: "As to the graveyard, it is very evident the appellant knew it was on the land when he purchased, and being there the law without any reservation, and inhibition ???? the deed, prohibits him from removing the stones that mark the resting place of the dead buried there, or of injuring and removing the enclosures around the graveyard and compels him to permit the relatives of those buried there to exercise ingress and egress to and from said cemetery on proper occasion and for proper purposes."

PROTECTING OLD CEMETERIES - What is the public's right to prevent someone from arbitrarily bulldozing down the monuments and destroying the cemetery? The Attorney General's opinion says: "Clearly, in Kentucky, the next of kin to persons buried in a cemetery have a right to preserve the cemetery, which the courts recognize and protect. A recovery may be had by the next of kin or the surviving spouse for an unwarranted interference with the grave of a deceased, or for the infliction of an injury to a corpse, if either be done - a) maliciously; b) or by gross negligence; c) or wantonly, i.e. with a reckless disregard for the rights of another, or; d) for an unlawful or secret disinterment or displacement thereof, or; e) an action of trespass…, or; f) for the removal of a body from one grave to another by those in authority and control of the cemetery or burial ground, without notice, or an opportunity without notice, or an opportunity to him who is entitled by law to be present, if he desires, before its removal."

(The term "next of kin", is defined as "those who inherit from the deceased, the fee, interest or easement and the soil containing the dead body".) Next of kin have the right to preserve the cemetery even though they are not owners of the land where the cemetery is located.

Anyone interested in preserving a family or church cemetery in Kentucky should: (1) Consider getting the cemetery as an exempt cemetery. (2) Report to the Consumer Protection Division in the Attorney General's Office any indication of violations of the laws described above. In case of a dispute over cemetery rights the Attorney General's Office - if requested - will attempt to achieve a settlement of the case through mediation, without going to court.

PLEASE NOTE: All of the above applies specifically to cemeteries in KENTUCKY. Readers working with cemeteries located in other states should check the laws and regulations in the state in which they are working.