As first reported by the New York Times, the National Funeral Directors Associations ("NFDA") recently issued a report finding that cremations accounted for more than half of all funerals in 2016. This represents the first time that cremations have passed the 50% threshold. It is also indicative of a larger trend, as the NFDA forecasts that cremations will account for 63.8% of funerals in 2025 and 78.8% of funerals in 2035.
Though cremations accounted for 50% of funerals nationally, the New York metropolitan area has lagged behind other parts of the country, particularly the west coast. In Connecticut, the numbers were almost evenly split with 43.4% of funerals being cremations and 44.3% were burials. In New York, cremations only accounted for 41.9% of funerals, while burials were at 51.8%. Similarly, in New Jersey the numbers were 41.9% cremations and 47% burials. Yet despite lagging the rates in states like California, the number of cremations has continued to grow nationwide, including in New York.
The New York Times article discusses various reasons for this trend. One factor is that Americans are becoming less religiously observant, and even some religious denominations themselves have loosened restrictions relating to cremation. For example, the Catholic Church has acknowledged the growing use of cremation, and has moved to accommodate the trend, subject to certain restrictions on practices like scattering ashes. The other major concern is cost, as cremation usually costs about a third of a traditional funeral and burial.
Finally, the article discusses a variety of anecdotal stories about how cemeteries have adapted to the growing trend in cremation. Notably, the New York Times interviewed Mitch Rose, the president of Woodlawn Cemetery, to discuss the various new burial options for cremated remains that Woodlawn has adopted. These include creative options such as inside benches or boulders near a stream.
The full New York Times article can be found at https://www.nytimes.com/2017/08/10/nyregion/cremations-increase-in-a-move-away-from-tradition.html
On November 16, 2016, a judge in New York County granted a petition to relocate the remains of Venerable (formerly Archbishop) Fulton Sheen from St. Patrick's Cathedral in Manhattan to St. Mary's Cathedral in Peoria, Illinois. Sheen, one of the first televangelists, was recognized for having lived a life of "heroic virtue" and has been credited with a miracle, two significant steps towards beatification and sainthood. However, his cause for canonization was suspended in 2014 due to a dispute between the Archdiocese of New York and the Diocese of Peoria over the handling of his remains. To break the stalemate, Sheen's niece and longtime aide, Joan Sheen Cunningham, petitioned to have Sheen's remains moved to Peoria, to continue the process for sainthood.
The petition claimed that Sheen would have wanted to have his remains moved to Peoria, as it was the city in which he was raised, ordained as a priest, and where his parents were buried. The petition also claims that relocation of Sheen's remains would aid in his campaign for sainthood. In opposition, the Archdiocese of New York argued Sheen wanted to be buried in New York, as his will had directed burial in another Archdiocese cemetery, Calvary Cemetery. However, his remains were ultimately buried at the more prestigious St. Patrick's Cathedral with the consent of his relatives and the Archdiocese.
In its decision, the Court noted the long-standing principle that "the quiet repose of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned." Furthermore, the most important factor for a court exercising its "benevolent discretion" are the wishes of the decedent. Here, however, Sheen's will directed that he be buried in Calvary Cemetery, and his wishes were undeniably ignored. Accordingly, the Court held that it would not speculate as to what Sheen would have wanted when his unambiguous wishes were not followed, nor would it take a position on issues of Catholic canon law.
In making its decision, the Court applied a two-part test: (1) did Petitioner demonstrate sufficiently important reasons for disinterment, and (2) did the Archdiocese identify a good reason to deny the request. On the first prong, the Court recognized Petitioner's reasons, enumerated above, as a good and substantial basis for disinterment. In contrast, the Archdiocese failed to show good reason for denying the petition, citing only the generalized desire that Sheen wanted to be buried in New York. Finding this argument to be mere conjecture, the Court granted the petition, and put Archbishop Sheen back on the path to sainthood.
The Court's full decision can be found here.
On January 12, 2017, the Cemetery Board published a revised version of its annual financial reporting form. The new form, available on the Division of Cemeteries website, significantly eases the filing requirements for cemeteries with less than $50,000 in total assets or less than 15 burials per year. As a result, nearly half of cemeteries will have their reporting requirement reduced from twelve pages to three.
Notably, all cemeteries are required to file the new annual financial reporting form. This includes cemeteries that are required to submit CPA-reviewed or audited financial statements, and as a result were previously exempt from the additional filing the annual financial reporting statement.
The Cemetery Board has also announced that it will hold a series of informational meetings in February and March to discuss the changes with cemetery officials. Based upon the feedback received, it may further amend the form to address any unforeseen issues. The full meeting schedule can be found in the Board's 2017 bulletin
As discussed in our last post, the New York State Association of Cemeteries recently published a series of model amendments, reproduced below, to amend a cemetery's rules and regulations to implement the newly passed pet burial law. Please note, however, that these are merely an example, and are not a substitute for cemetery-specific rules and regulations drafted in consultation with counsel.
If you find these regulations to be helpful, please consider becoming a member of the New York State Association of Cemeteries. In addition to providing templates such as the model regulations below, members also have access to resources such as NYSAC volunteers to help you understand and implement the new law. For more information, please visit the NYSAC website at nysac.com.
INTERMENT, ENTOMBMENT, OR INURNMENT OF DOMESTIC PETS
The following rules are adopted in order to implement the change in the law governing not-for -profit public cemeteries which permits a cemetery to authorize the interment of pet cremated remains where such interment is incidental to the burial of human remains.
Section 1. All interments, entombments, and inurnments of cremated domestic pet cremains are subject to these Rules and Regulations and shall also be subject to all the laws, ordinances, or requirements of the State of New York.
Section 2. Interment of cremated domestic pet cremains shall be permitted in ______________ (specific or all) sections subject to the following limitations of ____ pet interments per grave (or as defined in the deed to the lot, plot or part thereof).
Section 3. All interments, entombments, and inurnments of domestic pet cremains must be made at a time and in a manner scheduled and approved solely by the Cemetery and are subject to ___________ (no or additional) charges that are effective on the date of the interment, entombment, or inurnment. Scattering of cremated pets is not permitted in the cemetery.
Section 4. The authorization for interment, entombment or inurnment of a cremated pet will be granted by the cemetery only with the consent of ____________________. Absent the consent of ______________ disputes must be settled as follows _______________________.
Section 5. The Cemetery reserves the right to refuse interment, entombment, or inurnment of a cremated domestic pet, and to refuse to open any burial space for that purpose, except on written application by a lot owner of record prepared on forms provided by the Cemetery and duly approved and filed with the Cemetery. No interment, entombment, or inurnment of a cremated domestic pet shall be permitted in any grave, crypt or niche until all charges for such grave, crypt or niche are fully paid.
Section 6. (Optional language) The Cemetery requires that for every in-ground interment of a domestic pet cremains, the remains must be placed into either a traditional non-sealed concrete urn vault or a child-sized permanent urn, or a plastic temporary urn vault.
(Possible options for memorialization – please be sure to specifically outline what memorialization is permitted or prohibited)
Section 7. The right of memorialization of a cremated pet duly authorized for interment, entombment, or inurnment shall be granted to ____________________. Options for memorialization of cremated domestic pet cremains include:
a.) No memorialization;
b.) Placement of a memorial medallion on the marker, monument, monolith, crypt-front, or niche-front as approved by the cemetery.
c.) A granite or bronze memorial which is NOT the primary monument for a grave or lot and subject to the same privileges and requirements as provided elsewhere in these Rules & Regulations.
Section 8. For each interment, entombment, or inurnment of a domestic pet, the pet’s name, owner’s name, and type of domestic pet, date and location of interment and type of disposition shall be recorded in the Cemetery’s permanent record in a manner appropriate to the cemetery.
Section 9. Disinterment: Authorization for the disinterment of a cremated pet shall be authorized by_____________________.
On September 26, 2016, Governor Cuomo signed a bill to allow the interment of cremated pet remains alongside human remains. Last week, the New York State Division of Cemeteries ("DoC") issued guidance to help cemeteries understand the law's requirements. Cemeteries that do not wish to handle cremated pet remains are encouraged to explicitly include this restriction in their regulations. In addition, the new law does not apply to religious cemeteries.
Cemeteries planning to handle cremated pet remains must be aware of what constitutes acceptable remains, how such remains may be handled, and the associated documentation requirements. The law limits "pet cremated remains" to ashes of a "domestic animal... adapted or tamed to live in intimate association with people" that was cremated "at a pet crematorium." However, it falls to the cemetery to verify that any remains it accepts meet these criteria. Other examples of required documentation include: (1) proof of the sale of the burial rights and prices charged; (2) the name and signature of the person authorizing the interment; (3) the pet's name and type; (4) the date and location of the interment; and (5) whether the container for the pet's cremated remains was placed in the casket or buried separately. With respect to price, it should also be noted that the full interment charge must be deposited in the cemetery's permanent maintenance fund, and that such prices are subject to DoC approval.
Cemeteries must also be conscious of how and where they bury cremated pet remains. The law only authorizes the interment of such remains in a "grave, crypt, or niche" that "contains or will contain human remains." When cremated pet remains are interred, they should be kept in their own urn and not commingled with human remains. For ground burials, the remains should be placed inside or near the casket. Finally, a cemetery cannot have a section devoted only to interring or memorializing pet remains. However, it may limit the burial of pets to specific areas within the cemetery. These limits should be set forth in the cemetery's regulations. Cemeteries should also consider regulations on: (1) whether the policy for burying pet remains applies only to new graves or retroactively; (2) the maximum number of human and pet remains allowed per lot; (3) who may authorize interment of pet remains where there are multiple lot owners; and (4) disinterment procedures specific to pet remains.
In addition to guidance from DoC, the New York State Association of Cemeteries has prepared model regulations for issues related to cremated pet remains. These sample regulations will be included in a subsequent post
In 1963, the Catholic Church lifted its doctrinal prohibition on cremation, despite a continued preference for traditional burial. Yet as cremation has grown in popularity, many local priests have struggled with the absence of clear norms for handling cremated remains. In response, the Vatican recently issued new guidelines on cremation which, among other things, prohibit the scattering of ashes in favor of preserving the cremated remains in cemeteries and other approved sacred sites. The new guidelines also reaffirm the spiritual and canonical underpinnings of the Church's teachings and stated preference for traditional burial.
The guidelines reiterate that burial in a cemetery "encourages family members and the whole Christian community to pray for and remember the dead." Accordingly, the Vatican states that cremation urns should not be kept in loved one's homes except in "grave and exceptional cases dependent on cultural conditions of a localized nature." The text also prohibits scattering loved one's ashes or using the ashes in the creation of jewelry, stating that such "unfitting or superstitious practices" can promote "erroneous ideas about death."
On Monday afternoon, Governor Andrew Cuomo signed S.2582/A.2647, which allows for humans to be buried with their cremated pet provided that the cemetery consents. Cemeteries will also be required to place all payments for the pet internment in its permanent maintenance fund and provide customers with a list of charges pertaining to the burial of the pet. This legislation doesnot apply to cemeteries owned or operated by religious associations or societies.
For a more detailed discussion, refer to our earlier blog post on thew new law, which can be found here.
Legislature Sends Bill Amending Not-For-Profit Corporation Law To Governor: Part VI, Miscellaneous Provisions, EPTL, and Conclusion
This is the sixth and final post in our series looking at the bill, passed by the New York State Assembly and Senate on June 16, 2016, to amend the Not-For-Profit Corporation Law (“NFPCL”) [updated: the bill was signed into law by Governor Cuomo on November 29, 2016, and has an effective date of May 27, 2017]. This post looks at the remaining provisions in the bill, which include both minor provisions and comparable clauses to those described in past posts to the Estates Powers and Trusts Law.
The provisions discussed in our previous posts are the most notable revisions to the NFPCL in the bill, and the bill devotes a full five sections to implementing the same changes in the equivalent provisions of the Estates, Powers, and Trusts Law, including the provisions defining key persons, governing related party transactions and the determination of whether a given transaction is “fair, reasonable, and in the trust’s best interest at the time,” and Board of Trustees role in administering and overseeing conflict of interest and whistleblower policy provisions.
There are also several sections whose changes solely reflect the shift from “key employee” to “key person.” For example, the provision allowing service of process upon a “director, officer or key employee,” has been amended to ready “director, officer or key person.” As ensuring this type of statutory uniformity is the extent of the changes to those provisions, they are not individually addressed.
Finally, the bill’s last provision provides that the bill shall have an effective date of 180 days after passage into law [updated: in light of the date of passage, the law will now be effective May 27, 2017]. The sole exception to this is section six, relating to an employee serving as chairman of the Board. This provision shares the effective date of the provision it is replacing, which is January 1, 2016.
We hope you found this series of posts informative. If you wish to read the full bill for yourself, the text of the bill is available here: http://legislation.nysenate.gov/pdf/bills/2015/S7913
Legislature Sends Bill Amending Not-For-Profit Corporation Law To Governor: Part V, Related Party Transactions
This is the fifth post in our series looking at the bill, passed by the New York State Assembly and Senate on June 16, 2016, to amend the Not-For-Profit Corporation Law (“NFPCL”) [updated: the bill was signed into law by Governor Cuomo on November 29, 2016, and has an effective date of May 27, 2017]. This post looks at the provisions governing related party transactions.
As discussed in our first post, related party transactions are transactions or agreements entered into between the corporation and a “related party,” essentially a person linked to the corporation such that a conflict may exist. Our first post also noted several exceptions to what is considered a related party transaction. However, the recently passed bill also includes provisions clarifying how corporations should approach transactions with related parties, as well as how corporations may defend themselves against allegations of impropriety.
The key standard regarding related party transactions is that “no corporation shall enter into any related party transaction unless the transaction is determined… to be fair, reasonable and in the corporation's best interest at the time of such determination.” This determination may be made by the Board of Directors (“Board”) or a committee authorized by the Board. Moreover, the importance of this determination cannot be overstated due to the legal presumption it creates.
Under two new paragraphs in § 715, the determination that a related party transaction was “fair, reasonable and in the corporation's best interest at the time” is a complete defense to any action brought by a party other than the attorney general for a violation of the rules on related party transactions. Accordingly, every decision that could potentially involve a related party should be examined under the “fair, reasonable and in the corporation's best interest” standard before the corporation decides to move forward.
In addition, for claims brought by the attorney general alleging illegal related party transactions, it is a defense that the transaction was “fair, reasonable and in the corporation's best interest at the time” and that, prior to receipt of attorney general’s request for information regarding the transaction, the Board:
(a) ratified the transaction in good faith as being “fair, reasonable and in the corporation's best interest at the time” by majority vote (and if involving a third party with a substantial financial interest, the Board considered other options to extent possible);
(b) documented in writing the nature of the violation and Board’s basis for ratifying the transaction; and
(c) put in place procedures to ensure the corporation’s future compliance with the statute.
Thus, even where the determination is not made at the time of a transaction, it is critical that the Board act to ratify such a decision as soon as possible.
*It should be noted that the attorney general provision, which was added at the attorney general’s request near the end of the bill’s consideration before passage, suffers from apparent drafting errors. Several legislators have indicated that this provision will be subject to revision in the 2017 session.*
Our final post will focus on the remaining provisions of the new bill. The full text of the bill is publicly available here: http://legislation.nysenate.gov/pdf/bills/2015/S7913
Legislature Sends Bill Amending Not-For-Profit Corporation Law To Governor: Part IV, Conflict of Interest and Whistleblower Policies
This is the fourth post in our series looking at the bill, passed by the New York State Assembly and Senate on June 16, 2016, to amend the Not-For-Profit Corporation Law (“NFPCL”) [updated: the bill was signed into law by Governor Cuomo on November 29, 2016, and has an effective date of May 27, 2017]. This post looks at the provisions related to the adoption, oversight, and compliance assurance for conflict of interest and whistleblower policies.
The current NFPCL provides that “[t]he board or designated audit committee of the board shall oversee the adoption, implementation of, and compliance with any conflict of interest policy or whistleblower policy adopted by the corporation if this function is not otherwise performed by another committee of the board comprised solely of independent directors.” The new bill repeals this provision to create separate sections for each type of policy (§ 715-a (a) for conflicts of interest and § 715-b (a) for whistleblowers). However in doing so, the new bill vests the responsibility to “adopt, and oversee the implementation of, and compliance with” each type of policy solely in the Board, whereas before the task could be delegated.
The bill also changes the substance of each type of policy. Whereas the existing law required procedures for disclosing a conflict of interest to the audit committee, or alternatively to the Board, the new bill allows such disclosures to be made to any committee. In addition, conflict of interest policies must now include procedures for disclosing both actual and potential conflicts. Finally, the conflict of interest policy must also include procedures for how the Board or committee will determine whether a conflict exists.
As to whistleblower policies, the new bill mandates that policies require their administrator to report to the Board of Directors or an authorized committee, and prohibit directors who are employees of the corporation from voting or participating in deliberations relating to the whistleblower policy. The policy must also prohibit the subject of the complaint from being present during the deliberations or voting, though that individual may still answer questions prior to deliberations starting.
*the provision is § 715-b (b)(3). The previous § 715-b (b)(3) is moved to § 715-b (b)(4).
Our next post will focus on related party transactions. The full text of the bill is publicly available here: http://legislation.nysenate.gov/pdf/bills/2015/S7913