Can I Get Buried On My Private Property In California?

Credit: pacificanetwork.org

Barry Vogel is an attorney who had his own practice in Ukiah, California, for over 40 years. He mainly worked to protect clients’ personal rights and social justice rights. He’s worked on cases regarding the constitutional right to be buried on your own private property, a.k.a. home burials. Vogel also hosts a radio program called Radio Curious, which he’s done since 1991.

Editor’s note: This interview has been edited for length and clarity. 

Lucas Morgan: What was the other home burial case you worked on?

Barry Vogel: A man in his 30s had an accidental death on some property in western Sonoma County, a 1,100-acre parcel where he grew up and was living. Because of the accidental death of an otherwise healthy man, the coroner was notified, an autopsy was performed, and the cause of death was determined. The coroner returned the body to the mortuary, and the man’s parents decided they wanted a home burial.

There’s a law that says a body must be returned if the family of a person who has died wants their loved one’s body. The man who died was not married and had no children, so his parents were the authority.

So the parents took their son’s body back home and buried him on the 1,100-acre property. The family then went to the coroner’s office and asked for a copy of the death certificate. The coroner’s office asked if he was buried yet and they said, “Yes, he’s buried on the 1,100 acres where he grew up.”

Lucas: I’m guessing that’s where you come into the story?

Barry: You bet because the coroner’s office responded by saying that home burials without a permit is a misdemeanor and the office actually recommended me to the family. The family called and came to see me the next day here in Ukiah. To make a long story short, I obtained a copy of the death certificate, and we filled out all the necessary paperwork to obtain a burial permit after the burial.

But still, we got resistance from the sheriff’s office. They threatened at one point to dig up the body. I wrote a letter to the public health officer of Sonoma County showing all the proper documents and asking that a burial permit be issued. I said that if the permit was denied, we would not hesitate to bring a lawsuit against them.

For me, these cases, including this one, come down to the issue of fundamental rights and the fact there was no compelling state interest against this home burial on a massive rural property. I stated in the letter that it’s clear we would win the case, would insist on attorney’s fees and that the County would have to pay. That was the last communication I had with them. So safe to say they agreed.

Though not too common, most people win home burial cases in California
Credit: northernwoodlands.org

Lucas: Wow that is a fascinating story! Do people usually win these home burial cases?

Barry: The short answer to your question is yes. In my research and personal experience, that is the case. But do people usually bring these cases up? Are they common? No. This is because most people do not want to think about death, or they don’t want to be an active member of a county-wide home burial society. That being said, I think you need to have at least two people as plaintiffs in case the person petitioning for their own home burial dies during the process.

Lucas: How many different professionals would be involved in a home burial case, such as physicians or health officials?

Barry: The ones who would be involved, at least from my perspective, would mainly be public health officers. They’d have the most significant credentials. Professionals in water movement and/or contamination issues would also be beneficial to have on our side.

Lucas: What are the penalties someone could face if they are convicted of the misdemeanor of burying a body without a permit?

Barry: Penalties for any misdemeanor have maximums. Last time I looked, the maximums were a $1,000 fine or six months in jail. If a person were convicted, the choices would be to move the body or get a court order permitting it to stay.

Lucas: How would a home burial affect potential future owners of that property?

Barry Vogel: There should be a notice pertaining to the subject property saying something along the lines of “Notice of Unusual Circumstance.” That notice may not specifically say but, for a hypothetical example, perhaps there is a person buried in the northeast corner of the property 100 feet from the northern border and 100 feet from the eastern border. So the title would have “Notice of Unusual Circumstance” on it. Then the prospective buyer/new owner would need to inquire and have the conversation about it. It’s all about full disclosure, and the prospective buyer needs to get a full title report.

Credit: whav.net

Lucas: Do you have any tips and/or suggestions for people who are interested in having a home burial in California?

Barry: In my opinion, people who want to be buried on their own land should tend to these issues prior to their death. I could see some recalcitrant counties bringing to issue that “the person’s not dead yet,” and that there’s nothing for the court to discuss, to which I’d have two responses. First, let’s go to Health and Safety Code Section 7100, which guarantees that a person can decide how their body will be disposed of after death. Secondly: death is not a hypothetical. It’s a fact of life. I think when you frame it that way to the opposition, they’ll generally back off. 

People in a county could also organize a “Home Burial Society” to aid the process. They could file cases as a group and have all the paperwork filled out in advance and bring it to court. I believe most times they would win. I would also be willing to work with a group like that as I’m firm enough in my belief that they would win.

Lucas: Thank you, Barry, for speaking with me! I learned so much from our conversation.

Barry: Thank you Lucas, it was my pleasure.

In case you missed it, you can read Part One of our interview with Barry Vogel here.