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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Grave Matters: The law and practice of disinterment, reinterment, and exhumation in Minnesota

“The cemetery is an open space among the ruins, covered with violets and daisies. It might make one in love with death, to think that one should be buried in so sweet a place.”

– Percy Bysshe Shelley, Adonais

There are a number of reasons that the dead sometimes have to be disinterred and reinterred—or exhumed—and both law and custom demand that the process be handled with dignity and close adherence to the rules. The author, who is licensed both as an attorney and as a funeral director, shares legal and practical advice for attorneys based on his years of experience.

To me, there are few things as elegant as a well-run funeral or as beautiful as a burial done properly at a nice cemetery. Done right, the undertaker and sexton get the dead to where they now belong and the living on the path toward where they need to be. Sometimes, though, the good work of the funeral director and cemeterian needs to be redone, and that, my friends, is as serious a business as the original work.

I’m pretty confident that I am the only attorney in Minnesota (or the upper midwest, for that matter) who maintains a specialized set of equipment and tools for locating, surveying, and moving human remains. That’s part of my law practice. A day “out of the office” for me might mean I am at a cemetery, funeral home, or crematory advising a client. I didn’t intend for my law practice to take this direction—I wanted to (and do) practice civil litigation. But just as funeral service has a strange way of finding those of us who practice the Dismal Trade, mortuary law also seems to find you whether you want it to or not. While I may get strange looks at lawyer cocktail parties when people find out what part of my law practice entails, I am proud to do such work in the respectful manner the dead deserve.

After working on many disinterment/reinterment (hereinafter, simply “disinterment”) and exhumation projects over the years, I thought it might be useful to provide my law colleagues with a little information regarding the legal, ethical, and logistical concerns involved with disinterring or exhuming human remains in Minnesota.

When you think about it in a philosophical manner, a disinterment is the exact opposite of a funeral, which involves planning to get remains interred forever in a sacred place. Disinterment or exhumation is the planned and purposeful undoing of the funeral director’s and cemetery’s work—physically untying the knot of repose. It should not be taken lightly and it should be managed like the serious project that it is.

Some basic definitions and history

Disinterment, reinterment, and exhumation are governed by Minn. Stat. §149A.96 and applicable case law. Interment is a defined term under Minnesota law. Interment is “final disposition by burial or entombment.”1 Disinterment is not defined in the Minnesota statutes. However, the term has been defined as “to exhume a corpse.”2 This actually runs counter to the modern concept of disinterment, which assumes that the remains themselves are not exposed even as the container in which they’re held is dug up and relocated. The nuanced difference in the definitions is interesting from a historical viewpoint, and the old definitions are only now starting to catch up with the realities of modern burial.

Why move a grave at all? The most common reasons for disinterment are: 1) a construction project that necessitates the moving of remains; 2) a family’s wish to consolidate their loved ones into a single plot; and 3) to correct a mistake in where the grave space was laid out. I have worked on projects motivated by all these reasons. The reasons for disinterment will also inform how the project is planned and executed.

Exhumation is a highly controlled aspect of some disinterments that must be thoroughly planned. Exhumation is the exposing of the actual human remains themselves: You open the outer burial container (if there is one) and the casket (or coffin, if it is a very old burial) in order to access the actual remains. The two main reasons for exhuming human remains are: 1) to retrieve a DNA sample for medico-legal reasons; and 2) to retrieve what we call “grave goods”—items that were placed with the deceased and need to be retrieved. The most common example of the latter point arises when a family decides to bury valuable jewelry with a decedent and then has a change of mind. Back when I practiced as a licensed funeral director, I always discouraged the burial of jewelry, but grief has a way of causing the bereaved to make strange decisions they later regret.

Before the advent of outer burial containers (which became mainstream after WWII), just about any disinterment was effectively also an exhumation because the casket would often collapse or otherwise lose its integrity, leaving behind the remains (usually defleshed bones—but not always, depending on myriad conditions). Therefore, digging up a casket (or more likely a coffin, to use the proper term in historical perspective; see below) would likely expose the actual remains themselves. With the advent of modern outer burial containers, human remains can often be moved without exposing the remains themselves because the remains are contained within the grave liner, grave box, or vault. As such, we currently understand (and Minnesota legal language tacitly agrees) that opening a casket and exposing the human remains is the true modern definition of exhumation.

The terms casket and coffin are used interchangeably by laypersons, but in the funeral industry these words have distinct meanings. A casket is what you see at just about any modern American funeral: It is square on four sides with a rounded cover. Coffin is an antiquated term that describes an anthropomorphic container with six or eight angled sides and a flat cover, as seen in countless horror films. With a few exceptions for religious orders or custom-built units, coffins have generally not been used in the U.S. since after WWI (though they are still used in many other parts of the world to this day). The way I explain this to lay people is: Your grandma was buried in a casket; vampires sleep in a coffin.

I often hear folks use the term “vault” when they actually should have said “grave liner” or “grave box.” It is a common mistake, but the difference is very important if one is going to disinter/reinter or exhume remains because the type of outer burial container (or lack thereof) will dictate the process. All vaults are outer burial containers, but not all outer burial containers are vaults.3  The term “outer burial container” is defined by the Federal Trade Commission as “any container which is designed for placement in the grave around the casket including, but not limited to, containers commonly known as burial vaults, grave boxes, and grave liners.”4
Within the industry, the term vault means that there is some type of sealing mechanism (often a tongue-in-groove system between the lid and the body of the vault), though for warranty and FTC reasons, vault manufacturers tend to be careful in claiming that a vault “seals.”

A grave liner or grave box may weigh up to 900 lbs. or so. A high-end vault can weigh as much as 2,500 pounds. Add to this the weight of a casket (75 to 200 pounds, depending on the material) and the remains themselves, and the entire unit can surpass a ton and a half in weight. That is why specialized equipment (a vault truck and boom, or a vault caddy in tight quarters) is needed to install (or remove) these units.

Also of note: Minnesota law recognizes that there are situations in which remains may be held temporarily in a “receiving vault” and this is specifically not a form of interment under Minnesota law.5 The most common reason for using a receiving vault is to hold the remains of a person who passed away during winter months in anticipation of spring burial. Since the advent of modern grave-thawing equipment, many cemeteries (particularly large cemeteries and those in the metro area) bury in wintertime.

Minn. Stat. §149A (“The Funeral Rule”)

The key to any disinterment project is making certain that the right person(s) are signing off on the authorization for disinterment. Minnesota law sets out the person(s) with the right and duty to control the final disposition. They are often called the next-of-kin. However, describing the person with the right and duty to control the final disposition of a decedent as the “next-of-kin” is not technically or legally accurate. “Next-of-kin” is generally an inheritance concept,6 not a control of human remains concept. In actual practice the person(s) with the right and duty to control final disposition are more often than not the same as the next-of-kin, but the legal practitioner should never assume they are the same.

The person(s) with the right and duty to control the final disposition—and therefore also the person(s) who must authorize disinterment—are defined by Minnesota law.7 In descending order of precedence (with my own comments in parentheses), they are:

  1. person(s) appointed by the decedent in a dated written instrument;
  2. spouse of the decedent;
  3. adult child/children of the decedent (note that there could be a disagreement between the children; if that occurs, things get more complicated and you will want to proceed with great caution);
  4. surviving parent or parents of the decedent, each with equal authority;
  5. surviving adult sibling or siblings of the decedent (again, this can get complicated and you will want to be very careful if there are estranged siblings or there is a lack of agreement between siblings);
  6. adult grandchild or grandchildren (here also, be careful that everyone who is a grandchild has been identified and proceed with caution if there is any disagreement whatsoever);
  7. adult nieces and nephews (same warnings; you can see a pattern here);
  8. person(s) who were acting as the guardians of the person of the decedent with authority to make health care decisions for the decedent at the time of death;
  9. an adult who exhibited special care and concern for the decedent;
  10. the person(s) respectively in the next degree of kinship in the order named by law to inherit the estate of the decedent;
  11. the appropriate public or court authority. This is the final authority. A Minnesota district court can order a disinterment within its jurisdiction. If you ever must argue a petition for disinterment before the court—and I obviously have—be prepared to answer many technical questions and explain the entire process in detail. Judges understandably don’t like signing off on this kind of request unless they are fully satisfied that the work is being done by competent professionals with field experience. There is, after all, a legal presumption against disinterment.8

You will notice a theme in my parenthetical comments above. If you are dealing with more than one person (or are not sure you have identified all the potential interested parties), you must be extremely cautious. Much of my work on behalf of cemeteries involves working with those who have, or may have, the right and duty to control the final disposition and making sure that all affected parties have executed the proper authorization and agree with the project.

When properly planned and duly authorized, a disinterment project can be an emotionally and professionally satisfying experience. I once had an 80-year-old woman authorize moving the remains of her grandfather, who passed away in the 1930s when she was a child.
Due to a lack of money in those years of the Great Depression, her grandfather was buried in a pauper’s area of the cemetery. All these years later her family wanted to rectify this, and paid for the grandfather’s remains to be moved into an open space in what was now the family plot. She was absolutely delighted that her grandfather was being moved because she was never happy that he was buried in the pauper’s area of the cemetery.

Although this situation did not take place in Minnesota, she, as the only living grandchild, was the person under the subject state’s law with the right and duty to control the final disposition even though the great-grandchildren were the ones paying for the project. A few days after the reinterment, I invited her to see the new grave for her grandfather and had her pastor present to say some prayers. It was a moving experience for all involved.

In contrast, a poorly planned or unauthorized project will likely not have such a happy ending. Better to have the process take longer than anticipated than for the estranged sister of the decedent to find out her brother’s remains were moved without her permission. She may not have spoken to her brother in years, but I assure you, she will speak with a lawyer, and she may have a claim against the cemetery for an unauthorized disinterment.

Once you have identified the person(s) who can authorize the disinterment work, you will need to make certain that a properly drafted authorization has been prepared. Be certain that the authorization is comprehensive and covers all bases.

Cremated remains are treated differently under Minnesota law

Cremated remains (the portmanteau for which is “cremains” in the mortuary business) are “inurned”9 and are therefore legally treated differently than interred (buried) remains. Cremation itself, after the cremains are inurned and released to the possession of the proper person, is considered a final disposition under Minnesota law.10 No permits are required for the disinterment of inurned cremains per Minnesota law.11 That does not mean that a cemetery authority should take moving an urn lightly. A family can still bring a lawsuit against a cemetery under several legal theories if an urn is not moved in an appropriate manner (namely, failure to secure authorization from the proper persons). For risk management and ethical reasons, the actual movement of an urn should be treated with the same diligence and respect as one would apply in conducting disinterment of an outer burial container.

Movement of remains within a cemetery

Moving an outer burial container within a cemetery requires less legal paperwork than moving an outer burial container between two different cemeteries. Minnesota law provides a carve-out for moving an outer burial container within the confines of a dedicated cemetery property. This is because the plotting and layout of cemeteries are not an exact science; order and consistency of recordkeeping can be hard to maintain over so many years. A cemetery, is after all, a perpetual endeavor, with many generations coming and going in its care. Mistakes naturally occur. Consider that when a plotting measurement is taken at a cemetery, being a single inch off one foot out from a marker can result in being several feet off a hundred feet away. Thus, the law recognizes that a cemetery should have a mechanism by which it is able to correct a mistake.

I once was working on a project where we came across an urn that wasn’t supposed to be there. At first I thought the urn had been buried on the wrong side of the headstone, two feet from where it should have been. However, after checking the cemetery records and taking some measurements, I was able to determine that the urn was actually buried in the right place. The headstone, purchased years after the burial of the urn, had been set in the wrong place. While this type of misplacement is uncommon, it does occur, and the older the cemetery, the greater the chance of a recording or measurement inaccuracy.

Minnesota’s official disinterment permit requires the signature of a licensed funeral director. But when moving an outer burial container within a cemetery, no disinterment permit is required.12 A cemetery authority may disinter and reinter remains within the cemetery so long as it has the proper authorization of the person(s) with the right and duty to control the final disposition.13

These are the minimum requirements for moving an outer burial container within the same cemetery. In my professional opinion, the prudent cemeterian will take an additional step, as a good business practice, and have a disinterment permit issued and kept on file even though it is not a legal requirement. I advise all my clients to do this, because while it may not be legally required, it adds a layer of protection and demonstrates a dedication to professionalism by the cemetery should any questions ever arise.

Movement of remains between two cemeteries

Moving remains between two different cemeteries requires that the person(s) with the right and duty to control the final disposition execute the proper authorization and that a disinterment permit be issued by either the Commissioner of Health or (much more likely) a licensed funeral director.14

Thus, the two cemeteries must work together to ensure not only that the proper person(s) are granting written permission via an authorization, but also that a licensed funeral director is involved in the project.15

Transporting the outer burial container

Whether the outer burial container is moved within a cemetery or between two cemeteries, Minnesota law requires that the remains “shall be transported in an appropriate manner and container.”16 The terms “appropriate manner and container” are not defined, but any reasonable person, and certainly any funeral service professional, would agree that placing the outer burial container itself on a vault truck would be appropriate. After all, a vault truck is specifically designed for this purpose. In the situation where an outer burial container is to be moved between two cemeteries, I always insist that the outer burial container be washed down before going out on the public roads. A dirt-covered outer burial container is unsightly and calls attention in a negative manner. Being discreet and respectful is part of good project planning.

Objections to a disinterment

If the disinterment is opposed, then the project can only move forward after a court has issued an order.17 Strangely, anyone (yes, anyone) can oppose the project. However, their motivations and relationship to the decedent will be scrutinized by the court.18 The takeaway for cemeterians and attorneys is this: If a long-lost cousin opposes the disinterment wishes of a spouse, one cannot assume that the spouse’s wishes automatically control.
Once the cemetery becomes aware of opposition, the project must be halted and a court will be required to weigh the factors that augur for and against the disinterment work.19 Both statute and case law have a presumption against disinterment.20

Logistical and ethical concerns

Due to my experience with these types of projects, I would like to share a few observations that will help in making a disinterment project something your cemetery client and you as a legal professional can be proud of.

First, plan the project well ahead of time so that you can understand the work ahead of you: soil conditions, water table levels, the moving of monuments to gain access, the re-seeding of the disturbed area, security, etc. If you have a small cemetery, consider closing it on the day of the project. I recently worked on a disinterment project in which we had a law enforcement officer at the cemetery gates and the cemetery was closed during the project.

If you have a large cemetery and can’t close it, then consider privacy fencing. I worked on a project a while back that involved moving numerous graves because of a construction project—an intense, large-scale project that lasted weeks—and we had security fencing put up around the entire dig site. What you are doing may be legal and you might be performing at the highest ethical level, but one photo of a dirt-covered outer burial container coming out of the ground posted by someone on Facebook along with the name of your cemetery client can be a PR nightmare.

Second, use the most experienced cemetery workers, particularly those who will be discreet. You don’t want details of the disinterment project being shared at the local bar. Further, if you are using heavy equipment, have the best operator on hand. I once worked on a project in which a large excavator was used, and I swear that if you had put a scalpel on the end of the bucket, the operator could have done surgery 20 feet out from the cab. It was truly impressive, and his precision with the bucket made the physical work—which gets more and more delicate as you dig toward the top and sides of an outer burial container—much easier.

Third, plan for contingencies and make sure that those involved understand that this is serious work. Assume that everything will go wrong and then plan and prepare so that it doesn’t. When I am retained to manage a disinterment project, I take extra precautions and run through planning with all involved so that we understand the plan, the back-up plan, and the roles of everyone present. Get help and advice if you need it.

“I cannot think of a sweeter way to spend an autumn afternoon than to go out to the cemetery, when the maples are clad in tender gold, and little scarlet runners are coming, like poems of regret, from the sad heart of the earth.”

–  Robert G. Ingersoll

Exhumation: Rare, and not done lightly

Exhuming human remains requires a court order.21 Expect the court to be cautious and conservative in granting a request for exhumation, and rightly so. You must also understand that if the remains are in an outer burial container that does not have sealing properties (grave liner or grave box), the remains and grave goods are likely to be compromised by water. The lid of a grave liner or grave box can usually be removed and replaced without damage. If the remains are within a vault, the vault will have to be cracked open. A vault can normally be cracked opened by sledgehammer (if you know where to strike). A new vault will need to be purchased, adding to the cost of the exhumation project.

Exhumation is only done in rare circumstances. It is an expensive undertaking fraught with its own project management and logistical complications. Further, when I perform an exhumation, I always practice universal precautions under OSHA Bloodborne Pathogens standards—wearing a hazmat suit and respirator to protect myself from any chemical or biological exposure.22 (The germ, after all, does not die with the host.23) There is also the psychological aspect to consider for those performing the work. Not to be melodramatic, but as a former mortician I can tell you that you can’t unexperience certain things. You will obviously need experienced funeral service professionals on hand for the exhumation and absolute privacy is extremely important for both ethical and public health reasons.

Conclusion

Disinterment and exhumation work is serious business that calls into play legal, ethical, and public relations concerns on the cemetery’s part. Done for the right reasons, it can also be a service of great value to a family in providing peace of mind to the living. A family may rejoice in knowing that their loved one’s mortal remains are now where they should have been all along, or that a construction project will no longer affect the tranquility of a new resting place for their loved one. In the case of exhumation, the gathering of a biological specimen for DNA testing can mean a great deal to a family or person, both emotionally and financially. Plan the project carefully, double-check to be certain you are in compliance with the law, and be prepared for the strange and unexpected contingencies this type of work brings with it. If you do these things properly, you just might have the experience I had with that 80-year-old woman whose eyes welled up with tears knowing that her grandfather was now in repose with the rest of his family.

That, my friends, is the good feeling of an undertaking well done.


MICHAEL D. SHARKEY is licensed as both an attorney and funeral director in Minnesota and Wisconsin. He is general counsel to the Wisconsin Funeral Directors Association, a certified funeral service practitioner as recognized by the Academy of Professional Funeral Service Practice, and a certified crematory operator as recognized by the NFDA. In addition to his civil litigation practice, he represents funeral homes, crematories, and cemeteries in litigation and advises and counsels clients regarding best practices and litigation avoidance. He serves as a legal advisor and project manager for cemeteries that need assistance with disinterring, reinterring, and exhuming human remains. He is a shareholder at the Minneapolis law firm of Cousineau, Van Bergen, McNee & Malone, PA, where he is chair of the mortuary law practice group.


Notes

1 Minn. Stat.§149A.96 Subd 2.

2 Black’s Law Dictionary, Seventh Edition, pg. 481.

3 There are some religious traditions and cultures that avoid outer burial containers or use a grave liner that is bottomless so that the remains are in contact with the ground. These obviously have their own logistical and engineering concerns that must be thought through and addressed if the remains are to be moved.

4 16 CFR 453.1 (n); see also Minn. Stat. 149A.02 Subd. 31.

5 Minn. Stat. §149A.96 Subd 2.

6 Black’s Law Dictionary, 7th Ed., p. 1065

7 Minn. Stat. §149A.80 Subd.2.

8 Minn. Stat. §149A.96 Subd. 5.; see also Childers v. Breljie, 2012 WL 1970090 (Minn. Ct. App. 2012).

9 Minn. Stat. §149A.96 Subd. 9; see also Minn. Stat. 149A.02 Subd. 26a.

10 Minn. Stat. §149A.94 Subd. 4.

11 Minn. Stat. §149A.96 Subd. 9.

12 Minn. Stat. §149A.96 Subd. 3.

13 Id.

14 Minn. Stat. §149A.96 Subd. 1.

15 Id.

16 Minn. Stat. §149A.96 Subd. 6.

17 Minn. Stat. §149A.96 Subd. 4.

18 Minn. Stat. §149A.96 Subd. 5.

19 Id.

20 Minn. Stat. §149A.96 Subd. 5.; see also Childers v. Breljie, 2012 WL 1970090 (Minn. Ct. App. 2012).

21 Minn. Stat. §149A.96 Subd. 8.

22 Robert G. Mayer, Embalming: History, Theory, & Practice, (1996), p. 501.

23 Id.

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