I was recently driving through a neighborhood in my hometown, when I saw a collection of small gravestones nestled between two typical neighborhood houses. Because I always brake for cemeteries, I stopped to do some reconnaissance. It turned out that this tiny cemetery was a family cemetery, filled with generations of people that came before those that currently own and live on the land. I wondered, are family cemeteries a thing of the past? Or can I start one today?

If you are similarly curious, this article will outline what a family cemetery is, if and how you can create one, the possible benefits and drawbacks, and steps you can take to create your own.

How To Create a Family Cemetery

What is a Family Cemetery?

As Tanya Marsh explains in our American Funeral Law discussion, the word “cemetery” is defined by state statute–no federal law says what a cemetery is. Although we might see a collection of graves as a cemetery, it’s not always the case legally.

A family cemetery, by extension, is a collection of graves of people within the same bloodline or those related by marriage or household. It is typically cared for by the current owners and descendants of those buried in it. This practice was typical on the American frontier as many of these settlers did not maintain the English churchyard burial custom.1

 The answer to most questions about burial law is the frustrating, “it depends.” 

The case today is that many descendants of farmers and landowners no longer own the properties on which family cemeteries lay. This was the case for the small family cemetery that I encountered, simply set apart in the middle of an established neighborhood. The cemetery was left undisturbed in the development of the neighborhood, but if another parcel of land with a family cemetery on it is purchased, the new owners would have the choice to either allow the cemetery to remain or obtain a court order to relocate it.

Can I Create a Family Cemetery?

The answer to most questions about burial law is the frustrating, “it depends.” Each state, county, and municipality has different laws and guidelines about cemeteries and creating family cemeteries. As a result, you will need to research the laws in your local area. And then beyond the creation of the cemetery itself, you have to research the legalities of burying a body there, which also depend on the local and state ordinances. Although no states prohibit home burial, each area may have its own requirements for how to record a burial, if officials have to be present, and if you must establish a formal family cemetery.

An important consideration for creating a family cemetery is physical land space. Many of the restrictions about burial are around the position of the body relative to water sources, septic systems, and property lines. This poses less of a problem if you have several acres of farmland, but may be difficult for city-dwellers with limited space.

What are the Benefits and Drawbacks?

Image via Dehio

If you are considering a family cemetery, it’s likely that you enjoy the idea of being buried on land that is close to you and your family. You may want to have a funeral that is reflective of your personal ideals about the environment or desire to keep costs low. Home funerals and burials are very moving and can provide a lot of comfort to the survivors.

 Because there are legal pathways that would allow future owners to move the cemetery later, there is no guarantee that you would be buried on the land in perpetuity. 

However, the challenge of the family cemetery is continuity. Most family cemeteries are the responsibility of descendants, which means maintaining the property and the cemetery itself. Although you may have close ties to the land, later generations may not, and it may put them in a difficult ethical position about relinquishing the land and potentially moving you and your family’s remains. Because there are legal pathways that would allow future owners to move the cemetery later, there is no guarantee that you would be buried on the land in perpetuity.

What Does the Process Look Like?

Shaver Cemetery via NPS

If you do some light research and find that your area does permit family cemeteries, you have the space, and you’d like to create a family cemetery for you and your loved ones today and in the future, there are a few steps you should take. To provide first-hand experience, I determined the process to “create” a family cemetery in my hometown in Johnston County, North Carolina.

Steps one and two are to determine the local legal requirements by researching local laws and contacting local officials. First, I consulted my brother, who formerly worked with Johnston County. He suggested I look at the Land Development Code (LDL), which details the requirements for cemeteries. The LDL only provided standards for commercial use and church accessory use, so nothing particular to family-owned or private cemeteries.

The difference is that in family cemeteries there is no intention to sell or allot plots to people who aren’t within your family. To give you some sense of the requirements for commercial or church accessory use cemeteries, they require that the zoning lot have a minimum land area of one acre, have access to an arterial or collector street, and that no interments shall take place within 30 feet of any exterior lot line of the cemetery.2

To learn about the requirements for family cemeteries, we contacted a planner in the Johnston County Planning Department. He was also unsure, suggesting that this was not a popular question, but provided the additional detail that all cemeteries must be recorded as an “exempt plat.” This simply means that an area of land does not create an additional lot. Since there were no local guidelines about family cemeteries, our next step was to look to state law.

Step three is to contact state-level organizations that regulate cemeteries or funeral operations. We reached out to the North Carolina Cemetery Commission, who provided a lot of information about how to establish a family cemetery. If your state has a cemetery commission, this is a great resource to learn more about cemetery law and regulations local to you. For “bona fide farms” in Johnston County, there are few regulations in general. As a still largely rural area, farms have a lot of leeway in what they can do on their property. However, even if you own and reside on a bona fide farm, you have to file an exempt plat that outlines the family cemetery for future buyers. If you don’t reside on a farm (which my family does not), the same process is applied, but you also will likely have to go through any residential or Homeowners Association approval as well.

In this case, step four is to ask about residential or Homeowners Association guidelines. If I were to establish my family cemetery on my parents’ property, for example, I would have to obtain permission from the Homeowners Association in addition to approval from the Planning department for an exempt plat. In a phone conversation with the Community Manager for my parent’s neighborhood, he explained that he would need to take such a request to the Board of Directors of the Homeowner’s Association for approval. There, they would take into consideration nuisance factors and review bylaws for the neighborhood about permitted use of land that may be relevant.

If approved by the Homeowners Association Board of Directors, the last step before pre-planning would be to confirm state laws about home funerals. In North Carolina, there are no preservation time requirements for home funerals, so it can take place in as little or as much time as needed. They do recommend reporting contagious disease to an attending physician or medical examiner.3

Step-By-Step Recommendation to Establish a Family Cemetery:

  1. Contact your local government (e.g., county planning department, city planners)
  2. Learn about state and local laws
  3. If necessary, contact your state cemetery or funeral regulation group (e.g., North Carolina Cemetery Commission, Cemetery and Funeral Bureau of California, etc.)
  4. If you live in an area with a Homeowner’s Association or other neighborhood guidelines, call the representative to confirm that a cemetery can be established on your property
  5. Obtain necessary paperwork and approvals needed (e.g., exempt plat, HOA approval)
  6. Check guidelines for home funerals in your state. Consider if
    1. An official needs to be present
    2. There are guidelines about how the body is preserved
    3. There is a timeline for how quickly the body must be buried if you do not have access to refrigeration, embalming, or other means of preservation
  7. Make pre-arrangements so that the necessary officials (e.g., coroner, funeral director) and materials are available for burial

If you or your family own and live on a large area of land, creating a family cemetery may be relatively straightforward, but even so it still requires permissions from local governments. Be sure to always reach out to your local officials to learn about the regulations around cemeteries before you start burying anyone! As always, pre-plan, pre-plan, pre-plan!

  1. Tanya D. Marsh and Daniel Gibson, Cemetery Law: The Common Law of Burying Grounds in the United States, God Acres Publishing, 2015.
  2. Johnston County Land Development Code Sec. 14-257 Standards.
  3. https://www.homefuneralalliance.org/state-requirements.html


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