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Guidelines, Laws, And Frequently Asked Questions

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The Tennessee Historic Cemetery Preservation Program (THCPP) provides general guidelines for property-owners, developers and families who need information regarding what to do in the case of accidental discovery, maintenance problems, or the need to remove an historic cemetery.  It is important to note that in Tennessee, ALL human remains—whether modern or prehistoric—are protected under state law.  Most of the state’s cemetery laws can be found in Tennessee Annotated Code Title 46, Chapters 4 & 8 and in precedents set by the Walter Hines v. State of Tennessee (1911) decision.  The information presented here is for the convenience of interested parties and should not be used as a substitute for legal counsel.  A list of Frequently Asked Questions is provided below to determine if any of these common situations apply to you:

Desecration
Although there are several state statutes relevant to the desecration of historic cemeteries, the most applicable statutes address desecration of a venerated object and corpse abuse.  The law concerning both can be found in TCA 39-17 Part 3.  Desecration of a burial or cemetery is a Class A felony, and the disinterment of a dead body, corpse or human remains without legal authority is a Class E misdemeanor.

Relocation of a Cemetery
Tennessee law stipulates a process that a landowner or interested party must follow in order to relocate a cemetery or grave.  First, the party MUST request permission from the Chancery Court. The cemetery to be moved must be abandoned and/or neglected, and any new proposed use of the site must corroborate with proper respect for and veneration of the dead.  Relatives of the deceased must be given legal notice, but no permission from said relatives is required. A property owner possesses the right to remove and relocate the graves at his/her expense after complying with state statutes. The removal must be conducted with proper care and civility, and the landowner must provide a suitable place for reinternment of remains.  TCA 46-4-101-104 (Termination of Land Use as Cemetery) is the primary statute that covers removal and relocation of graves. Note that a disinterment order from the Tennessee Department of Health, State Registrar, Office of Vital Records (TCA 68-3-508), and Rule 1200-7-1-.08 is a prerequisite to remove human remains.

Archaeologist or Funeral Home for Removal
Archaeological methods are superior in the case of graves that have been abandoned or in areas where graves are difficult to locate. Archaeologists have expert experience in identifying historical artifacts (coffin hardware, etc.) and are best suited to identify human remains in areas in a state of poor preservation. Graves created after 1925 can generally be handled by funeral homes. Contact the Tennessee Division of Archaeology for more information.

Discovery of Human Skeletal Remains
If human skeletal remains are accidentally exposed due to construction or other activities, the contractor or landowner MUST cease all work in the area and immediately call a medical examiner or coroner AND local law enforcement (TCA 11-6-107d). and Then, the Tennessee Division of Archaeology should be contacted. These steps MUST be followed when human remains of any kind are found.

Does a Cemetery Exist on my Property?
Any person or entity interested in property for purchase or development should always remain aware that cemeteries could exist on the tract. Some important ways to determine whether a cemetery exists on a particular tract of land include: (1) checking old deeds and property records; (2) checking old maps; (3) talking with long-time local residents; (4) searching for sunken areas on the property that seem to be oriented east to west; (5) looking for Vinca minor (cemetery ivy) and (6) looking for tombstones, fragments, and/or plain stone markers.  If a cemetery is determined to be present on the property, there are obligations a landowner/developer MUST meet. For example, construction crews are required to leave a ten-foot buffer around the perimeter of a grave(s) and in the case of a crypt, a five-foot buffer (T.C.A. 46-8-103). Also, landowners must remember that family members have a right to visit the graves of ancestors, even if they are located on private property—this precedent is set under Tennessee Case Law. Furthermore, owners or future buyers of a land tract have an obligation to protect graves from disturbance when a cemetery is shown on a deed.  Family members concerned about protecting an ancestral burial ground should consider marking it well with fences and a sign. Also, they should consider obtaining a survey by a professional surveyor and recording it on the deed. These actions will help establish the cemetery’s existence in the public record.

Historic Cemeteries Located on Private Property
The Tennessee Historical Cemetery Preservation Program accepts reports by public and private interests regarding exposed human skeletal remains, but only after the conditions established under the heading Discovery of Human Skeletal Remains have been met.  THCPP will coordinate with the Division of Archaeology for an initial evaluation to see whether or not remains are present. In cases where remains are exposed or endangered, the Division of Archaeology will provide technical advice to help landowners understand their obligations and options under the state's cemetery statutes. 

A private landowner must always adhere to Tennessee’s cemetery laws when a cemetery exists on his/her property. At this time, neither the Tennessee Historical Commission nor the Division of Archaeology can require a private landowner to have a burial investigation performed.  Both agencies are limited to offering technical advice UNLESS human skeletal remains are actually disturbed.

Private archaeological consultants can provide such services. Click here for Archaeologists working in Tennessee

Other resources

Tennessee Code Annotated

Tennessee State Burial Law

Tennessee State and County Medical Examiners

Office of the State Chief Medical Examiner

County Medical Examiners

Endangered Cemeteries in Tennessee 

 

Frequently Asked Questions

Note: The Tennessee Historical Commission DOES NOT enforce cemetery law.  If you believe someone has broken the law, you are encouraged to report it immediately to local authorities and consider consulting a licensed attorney.

Q: If I don’t see any headstones, does that mean the cemetery isn’t there anymore?
A: NO - According to TCA 46-1-102. Definitions: a cemetery can be as small as a single burial or even a designation plot intended for future use.  It is not required to include headstones or other markings.  Often a person might consider a cemetery “destroyed” when markers have been removed; however, as long as graves remain, the cemetery still exists.

Q: Can I bulldoze a cemetery I own and use the spot for something else?
A: NO (with exceptions) – According to TCA 46-4  a landowner who has taken possession of a cemetery that is located on a deed has a “duty to protect graves and crypts” and may not disturb them within a prescribed radius.  However, a landowner in Tennessee is not obligated to maintain a cemetery, whether or not it is present on a deed.  In addition, a landowner has the right to petition the county Chancery Court for permission to relocate (at the landowner’s expense) the cemetery to another suitable place. Only when the process of legal relocation is complete does the parcel in question lose its cemetery designation.

Q: Why can’t I just bulldoze a cemetery on my own land?  It’s mine!
A: According to precedent established in Walter Hines v. Tennessee (1911), (Link to doc “Walter Hines v. State of Tennessee (1911)” in “The Law”) “burial lots, whether public or private, are not the subject of trade and commerce, and it is always presumed that they are not included in the sale of land which surrounds them”.  This is the case whether or not a cemetery is identified on a deed.  Such an act of intentional destruction may be considered a violation of Title 18 U.S. Code § 247 damage to religious property; obstruction of persons in the free exercise of religious beliefs.  TCA 46- 4 describes the process by which a landowner can petition the county Chancery Court for permission to relocate (at landowner’s expense) a cemetery to another suitable place. Once the process of removing graves is complete, the area loses its designation as a cemetery and can be used for other purposes.

Q: Can I stop people from visiting a cemetery on or that is accessed only through my land
A: NO According to precedent established in Walter Hines v. Tennessee (1911) descendants and their guests have the perpetual right to visit any cemetery in which their ancestor(s) are buried.  In addition, cemeteries are considered a religious entity, therefore, the landowner may be in violation of Title 18 U.S. Code § 247 Damage to religious property; obstruction of persons in the free exercise of religious beliefs.  If a potential visitor reaches out to you, we suggest establishing warm relations.  Whatever transpires, you still must comply with the law.

Q: I want to visit the grave of my grandmother, whose grave is located on private property.  Am I allowed?
A: YES. According to precedent established in Walter Hines v. Tennessee (1911) descendants have the perpetual right to visit any Tennessee cemetery in which their ancestor(s) are buried.  It is highly recommended that the visitor establish contact with the landowner prior to the visit. If the contact cannot be easily located, your County Clerk might be able to help.

Q: I tried to visit my grandmother’s grave on private property and the landowner told me I couldn’t.  Is this legal?
A: NO According to precedent established in Walter Hines v. Tennessee (1911) descendants have the perpetual right to visit any cemetery in which their ancestor(s) are buried.  If you encounter such a situation, there are some options you can take to remedy the situation.

1.     BE NICE.  Explain who you are and why you want to visit the cemetery.  Establishing a positive relationship with a landowner might allay his/her concerns about who you are and what you’re doing on the property

2.     CONTACT THE OWNER BEFORE YOU VISIT.  The landowner may not know who you are if you just show up.  Once the landowner understands the importance of the cemetery to you, he/she might even be helpful…you never know!

3.     WALK AWAY.  It is always advisable not to intensify a heated encounter with a landowner. Since a property owner is required by law to practice due diligence to protect the cemetery, he/she may think you are there to cause harm.  A landowner is never legally entitled to obstruct a descendant of someone buried on his/her property, but if that happens, contact local law enforcement. Local law enforcement has the responsibility of upholding Tennessee Cemetery Law. An officer may even accompany you back to the site.

4.     If you believe your civil or religious rights have been violated in any form when being denied access to your ancestor’s grave, you are highly encouraged to report the incident to proper authorities and contact an attorney.

Q: Some company is trying to dig up my great, great grandpa from a cemetery located on its property.  What can I do?
A: A landowner has the right to petition for removal of a cemetery on his/her property according to the statutes established in TCA 46-4. If you see a landowner or parties associated with the landowner illegally removing a cemetery or gravesite, you should contact local law enforcement, an attorney and/or other interested parties such as known descendants.  If you are not sure who to contact, call the Tennessee Historical Commission’s Historic Cemetery Preservation Specialist for consultation. 

Q: I am on a construction crew and just uncovered what might be a human bone.  What am I supposed to do?
A: Stop construction activity IMMEDIATELY and contact local law enforcement and the Tennessee Division of Archeology (615) 741-1588. Such contact is required by law. If all else fails, do not hesitate to call the Tennessee Historical Commission for consultation.  DO NOT continue your construction activity.  You could easily find yourself charged with a Class E Felony under TCA 39-17-312 for abuse of a corpse.

Q: Why do I need to call local law enforcement when I accidentally dig up human bones?
A: You may have found a crime victim.  Do not allow yourself to be an accessory to the crime. 

Q: I just bought land and found out it had a family cemetery on it.  That means I can’t use the land like I was planning to.  Do I have any options besides going through the reinterment process?
A: No: However, according to TCA 46-8-103, “The owner of real property has the responsibility for taking appropriate action, prior to conveying such property, to ensure that the deed reflects the presence of the gravesite or crypt on such property.” Thus, it is the seller’s responsibility to make sure a known cemetery is recorded on the deed of the property that is being transferred.  According to Walter Hines v. Tennessee, “Burial lots, whether public or private, are not the subject of trade and commerce, and it is always presumed that they are not included in the sale of land which surrounds them.” If you suspect that a seller knew about the cemetery and did not tell you, you are advised to contact an attorney to find out your options.  In any case, be sure to consult your County Clerk’s Office about updating the deed as required by law. 

Q: I’ve noticed that a cemetery is listed on the Tennessee Property Data site as religious-tax exempt entity, but there is no human owner I can contact to get permission to visit. What do I do?
A: A descendant has the perpetual right to visit the gravesite of an ancestor, and the Tennessee Comptroller of the Treasury assures that EVERY cemetery in Tennessee is owned by someone, even if there is no owner name listed in the records.  Each county is required to know the owners of all known cemeteries within its jurisdiction.  Call the County Register of Deeds to find out this information.  The State Comptroller’s office bases cemeteries on its site from information provided by the county.

Q: I think my local chancery court made an unreasonable decision when it allowed an historic cemetery to be destroyed.  What can I do?
A: Be Proactive! All circuit courts are obligated by law to follow state statutes.  In such a case where you believe state law has been breached, it is recommended that you or your legal counsel report your concerns to your region’s District Attorney.  Remember that as long as the statutes established in TCA Title 46 are followed, a landowner has the right to relocate a cemetery.

Q: What can I do to keep a historic cemetery from being relocated, even though the landowner is abiding by state law?
A:  Nothing. However, you might consider organizing with like-minded people in your community.  Contacting your local historical society is a great place to start!

Q: Can I bury my deceased father on my property?
A: Maybe.  There are no state laws that prohibit where you can bury your deceased loved one. However, your county or local municipality may have ordinances you have to follow.  There are a few things you must do prior to burial.  Contact the Tennessee Department of Health at or your county clerk for more information. Click on these helpful links to find out more information about things you must do in the case of a death or family burial.

Q: I have an estranged cousin who wants to clean up our common ancestor’s cemetery.  What can I do to stop him? 
A: Not much. Walter Hines v. Tennessee (1911) established a precedent that both you and/or your cousin have the perpetual right to visit and maintain a cemetery holding your ancestor.  The exception to this rule would be an act of desecration (for example your cousin maliciously destroys your mother’s grave because the rest of the family didn’t like her). The State of Tennessee does not involve itself in private family disputes.  A good suggestion would be to try to make amends with your cousin and approach the cemetery’s care as a team.  If all else fails, you might consider contacting a licensed attorney.

Q: Can I get a tax break since the cemetery on my property can’t be used for other purposes?
A: Maybe.  You may notice that many cemeteries listed in the Comptroller of the Treasury’s Tennessee Property Data Viewer are shown as separate, religious tax-exempt entities, but those less than ¼ acre are often not listed.  If your cemetery cannot be found on this site, you can find out more information in the most current Property Tax Exemption Manual published by the Tennessee State Board of Equalization.

Q: Is a landowner required to maintain a road or path accessing a cemetery on his/her property?
A: No: It is certainly a good idea for a landowner to ensure that a cemetery on his/her property is accessible to avoid a potential lawsuit if a descendant was to sustain an injury trying to reach it since at any time a descendant could exercise his/her perpetual right to visit.   However, state law does not currently require the property owner to maintain such a path. Law does require that access to the cemetery is not blocked intentionally by a property owner.  If you suspect that intentional blockage has occurred, you can contact local law enforcement and/or a licensed attorney who might better resolve the situation.

Q: I went to my family cemetery to visit and it looks a lot smaller than it used to.  The landowner has used what I remember to be part of the original cemetery as grazing land and has fenced off a smaller portion of the cemetery.  Is it legal for the landowner to do that?
A: If you find that your suspicions are true, then the landowner has broken the law.  The precedent set in the Stoker v. Brown (1979) decision is in effect, and you should contact an attorney.  Be sure to gather any proof necessary to prove your claim, including all deeds, photographs and other pertinent information.  However, if the landowner successfully petitioned the court for relocation of part of the cemetery as specified in TCA Title 46,  then the landowner has complied with the law and there is probably little if anything you can do.

Q: I just bought some land and found out there is a cemetery on it.  What does that mean?
A: Finding a cemetery on your new purchase may or may not mean several things covered here:

1.     Just because it is on your property does not mean you necessarily “own” the cemetery.  You should check with the County Register of Deeds to see if the cemetery has been mentioned on any previous land transfer documents (back to the original owner if known).  You may find that the descendants still technically own it.  See Walter Hines v. Tennessee (1911).

2.     If you find that a cemetery is on your new property and the former owner and/or realtor knew about it but did not disclose the information at the time of sale, you should file a complaint with the Tennessee Department of Commerce and Insurance.  The same goes if a landowner/real estate professional claimed a cemetery was a part of a sale when ownership has not been established.  Also, contact an attorney.  You might even be entitled to damages.

3.     Even if you do find you own the cemetery, you still cannot use the area for commercial purposes, relocate the graves without going through the process defined in TCA 46-4, remove grave markers and stones, cause the cemetery boundaries to “shrink,” or block family members from visitation or other related religious rituals.

Q: I am an attorney representing a client who wishes to relocate a cemetery as per TCA 46-4It seems very difficult to locate descendants of those buried in the cemetery.  Can I just use Find-a-Grave and be done with it?
A: NO If you are found by the Tennessee Historical Commission to have failed to adhere to any portion of TCA 46-4,  you will be reported to the proper authorities.