THE NOT VERY LONG ARM OF THE LAW

Our family is made up mostly of educators, with a few engineers, musicians, and business people thrown in for variety. Since there aren’t any lawyers in our current family tree, it’s taken us a while to trudge through South Dakota cemetery laws and regulations to see what kind of protection or recourse they offer families.

Because we aren’t attorneys, we’ve done our best to consult with those who do have legal expertise, in particular with Richard Lang, who has been reviewing laws applicable to Restlawn. We have also checked in multiple times with the SD Attorney General’s office and with other SD government offices. But since the writing below is ours, please remember that we’ve never taken LAW 101, let alone passed a bar exam.

Also a family’s individual circumstances will have an impact on how some of these laws and regulations apply.  As they say, your mileage may vary.

With these caveats in mind, here are the questions that have made our FAQ list.

Q. What state organization is responsible for cemetery oversight in South Dakota? What authority does this group have when regulations are not followed?  

A. There doesn’t seem to be any such governmental organization. We thought that the South Dakota Board of Funeral Service might be that group, or that they at least would be able to point us in the right direction. But no. The executive secretary of the board responded to our query as follows: “Unfortunately we are not able to help you as it is outside of our jurisdiction.  We are not aware of an agency we can refer you to.”

Q. Do other states have boards or offices that are responsible for cemetery oversight?

A. Yes, there are plenty of examples. See the State of Maryland’s board

 

 or the one in Illinois.

Here is information about the boards in Indiana

and Virginia.

Other examples available upon request.

Q. Are owners of South Dakota cemeteries required to submit annual financial reports to the Secretary of State?

A. Yes, in fact they are. They are required to file the South Dakota Perpetual Care Cemetery Annual Financial Report.

Q. What happens if owners do not submit the South Dakota Perpetual Care Cemetery Annual Financial Report to the Secretary of State?

A. Apparently nothing. Not even a fine. So it isn’t surprising that SD cemetery owners seem to ignore this state requirement. The Argus Leader reported on this lack of enforcement a few years back. 

Q. What authority does a county or a municipality have in regard to a cemetery operated by a corporation? What recourse does a county or municipality have if a cemetery owner is out of compliance?  

A. Perhaps none.

Q. So if there is no SD cemetery oversight board and if counties and municipalities don’t have authority over a corporately-owned cemetery, who is responsible for dealing with complaints?

A. Many of us with concerns about Restlawn have been referred to the Consumer Protection department within the Office of the Attorney General. This department looks after a very full range of consumer issues.

Q. With this breadth of concerns to deal with for the entire state, how many attorneys are on the staff of the Consumer Protection department?

 A. One, according to a Consumer Protection supervisor.

Q. Can people who have paid for pre-need burial services find out if it is likely that their contract will be honored?

  A. This doesn’t appear to be possible.

Q. How can someone learn about the current assets held in an endowed cemetery trust in SD?

A. It seems this can be achieved only though a subpoena in the event of a lawsuit.

Q. Can people in other states learn about the assets held in an endowed cemetery trust without a lawsuit?

A. They can at least in Ohio: “Annual reports of all the assets and investments of the endowment care trust shall be prepared and maintained, and shall be available for inspection at reasonable times by any owner of interment rights in the cemetery.”  See the entire Ohio law about endowment trusts here.

We’re currently examining other states’ laws in this regard.

Q. What recourse do family members have if they had to once again purchase a vault that had already been paid for through a pre-need contract?  

A. They could sue for breach of contract.

Q. What level of failure to comply with a pre-need contract (like for markers or vaults) constitutes a breach of contract that would be taken seriously? And how far would the upkeep of a cemetery need to decline in order for these issues to be regarded as a breach of contract?   

A. This would depend on the facts at hand. But if funds are missing, that could constitute a serious breach of contract.

Q. Is a pre-need SD contract that specifies various goods and services still binding when ownership is transferred to someone else through a traditional sale? 

A. Yes. But this isn’t always achieved without a struggle. See this Tennessee case as an example.

 

Q. Where can I find the South Dakota laws about cemetery perpetual care funds?

A. Right here.

 Q. How can I read other SD cemetery laws?

A. It’s easy to find these laws. Try this page, and enter “cemetery” in the text search box.

Q. Are all of the relevant laws specifically about cemeteries?

A. Not necessarily. Some are about corporations.

Q. If I’m not happy with a SD law, what can I do?

A. If you live in SD, you can contact your state representatives to let them know how they can, well, represent you. That’s their job. (If you don’t live in SD, you can still contact these legislators, of course.)

Q. Who are my SD state representatives?

 A. You can locate them via this page.

Do you or your attorney have a different take on any of these questions? Or do you have some comments about the above? If so, please post on our Facebook site:

 

You also can send a message to restlawnalliance@gmail.com.