Cemeteries and the Law

How the Code of Virginia Protects and Affects Burial Sites

Overview of Virginia Law This is designed as a basic primer on state

laws protecting cemeteries. DHR cannot interpret these laws or provide

legal advice based on such interpretation. If you have questions about Virginia burial

law, we strongly suggest that you speak with a qualified legal professional.

Virginia Burial Law Laws established by the State of Virginia to

protect cemeteries and human burials located within the Commonwealth.

Useful in situations where there is no existing federal law.

Do not trump Federal law.

Virginia Preservation Law Antiquities Act (Code of Virginia 10.1-2300)

Prohibits damage or destruction of historic properties and removal of objects of antiquity from all state-owned or -controlled land. This includes historic cemeteries.

Prohibits archaeological excavation without a permit from DHR.

Class 1 misdemeanor.

Virginia Preservation Law Cave Vandalism Act (Code of Virginia 10.1-

1004) Illegal to remove, deface or tamper with any

signage placed in or near a cave. Illegal to excavate, remove, destroy, deface or in

any manner disturb any burial, burial ground, historic/prehistoric resource, archaeological site or part thereof. This includes relics, inscriptions, fossils, bones,

or other remains of prehistoric or historic human activity.

Class I misdemeanor.

Virginia Burial Law Action for injury to cemetery property

(Code of Virginia 8.01-44.6) Cemetery owner may bring legal action against

any person who willfully and maliciously damages, destroys, mutilates, defaces, or removes any structure located within a cemetery, graveyard, or place of burial. This law pertains to tombs, headstones and

monuments as well as fences, walls, and ornamental items.

Virginia Burial Law Permit for Archaeological Excavation

of Human Remains (Code of Virginia 10.1-2305) Illegal to archaeologically recover human

remains from unmarked graves without a permit from DHR.

DHR is considered an interested party in any proceeding involving a petition for court-ordered removal of burials from marked cemeteries.

Virginia Burial Law Plat of proposed subdivision and site plans

to be submitted for approval (Code of Virginia 15.2-2258) Landowners wishing to subdivide property within

an area in which subdivision ordinance(s) apply must submit a plat of the proposed subdivision to the governing body for approval.

This plat must contain the location(s) of any cemetery, graveyard, or place of burial, or any object or structure marking a place of burial.

Virginia Burial Law Trespass at night upon any cemetery (Code

of Virginia 18.2-125) Entrance upon any cemetery at night and

without the consent of the owner, proprietor or custodian, for any purpose other than to visit the gravesite of a family member, is a Class 4 misdemeanor. This law pertains to the property surrounding

the cemetery as well as to its walkways, driveways, and parking areas.

This law pertains to both public and private cemeteries.

Virginia Burial Law Violation of sepulture, defilement of a dead

human body (Code of Virginia 18.2-126) Unlawful disinterment or displacement of a dead

human body or part thereof from a coffin, vault or other burial place is a Class 4 felony.

Willful and intentional defilement of a dead human body is a Class 6 felony.

Virginia Burial Law Injuries to Churches, Church Property,

Cemeteries, Burial Grounds, Etc. (Code of Virginia 18.2-127) Illegal to damage, deface, destroy or remove

monuments, gravestones, tombs or other grave markers.

Class 6 felony.

Virginia Burial Law Trafficking in Bodies (Code of Virginia 32.1-

303) Illegal to buy, sell, transmit, convey, or procure

for the purposes of transmittal or conveyance, a dead human body or part thereof.

Class 1 misdemeanor.

Virginia Burial Law Sale of Body Parts Prohibited (Code of

Virginia 32.1-289.1) Illegal to buy, offer to buy, sell, offer to sell, or

procure through purchase a human body part for any reason.

Class 6 felony.

Virginia Burial Law Roads not to be established through

cemetery or seminary of learning without owners’ consent (Code of Virginia 33.1-241) Landowner’s consent is required in order to

construct a road through the lands of any cemetery.

Virginia Burial Law Designated areas unsuitable for coal

surface mining (Code of Virginia 45.1-252) Includes any lands within a 100-foot radius of

any cemetery.

Virginia Burial Law Access to cemeteries located on private

property; cause of action for injunctive relief (Code of Virginia 57-27.1) Owners of cemetery property must allow access

for the following purposes: Visitation by family members/descendants of the

deceased Plot owner(s) Any person engaging in genealogical research

Reasonable notice is required, and the landowner has the right to designate frequency, hours, and duration of access.

Virginia Burial Law Access to cemeteries located on private

property; cause of action for injunctive relief (Code of Virginia 57-27.1) Access is limited to visitation, maintenance of

plots or cemetery, and genealogical research. Operation and use of motor vehicles requires landowner permission and must be confined to existing roads or rights-of-way.

Visitors are liable for damage (to self and cemetery)

Any person denied reasonable access may petition the circuit court for relief.

Virginia Burial Law

Abandoned graveyards may be condemned; removal of bodies (Code of Virginia 57-36) Local government may obtain property

containing unused, abandoned or neglected graveyards by eminent domain.

The property may be used for purposes other than burial, but the court may require that remains be removed to an existing cemetery.

Virginia Burial Law Proceedings by landowner for removal

of remains from abandoned family graveyard (Code of Virginia 57-38.1) Landowners may petition the court for permission to

remove remains from abandoned graveyards. This does not apply to graveyards upon which

there is a reservation of rights, although the beneficiaries may waive those rights.

The court must consider the historic importance of the graveyard, as well as the wishes of any interested parties.

Virginia Burial Law Proceedings by heir at law or

descendant for removal of ancestor’s remains from abandoned family graveyard (Code of Virginia 57-38.2) An heir at law or descendant may also petition the

court for removal of an ancestor’s remains. The court may provide permission regardless of

any existing reservations of rights. The court must consider the historic importance of

the graveyard, as well as the wishes of any interested parties.

Virginia Burial Law Proceedings removal of remains and

sale of land vacated (Code of Virginia 57-39) Owners and trustees of private graveyards and

potter’s fields may petition the court for permission to remove the interments and sell the property for another use. Proceeds must cover proper reinterment and

placement of suitable monuments. In the case of potter’s fields, the court may decide

that proceeds from the land sale must be used for charitable purposes.

Virginia Burial Law Improvement of abandoned and neglected

graveyards (Code of Virginia 57-39.1) The owner(s) of land adjacent to the graveyard, or

the local governing body, can file a bill in equity with the circuit court to require that the graveyard be placed in a suitable condition.

The court may also allow the petitioner(s) to improve the graveyard or return it to a suitable condition.

The court decides whether the graveyard owner or the petitioner(s) will bear the financial cost of restoration.

Department of Historic Resources

Department of Historic Resources: 804-367-2323 (Richmond office) 540-857-7588 (Roanoke office) 540-868-7033 (Northern VA office) 757-886-2808 (Tidewater office) Website: www.dhr.virginia.gov