Exhume Law and Legal Definition

Exhume means to dig up a dead body for medical investigation or other purposes. A person seeking to exhume a body must usually petition to have the body exhumed. Because of the general disinclination to disturb remains, a valid reason is required before exhumation will be allowed. Such reasons may include newly discovered evidence requiring a medical examination as to cause of death or verification of identity in cases of possible mistaken identity. State laws regarding exhumation vary, so local law should be consulted to determine specific requirements in your area.

The following is an example of a state statute dealing with the right to exhume:

"At any time prior to the removal by said cemetery corporation, association, corporation sole or other person owning or controlling said cemetery lands of the remains of any person buried therein, any relative or friend of said person may voluntarily remove such remains and dispose of the same as he may desire; provided, that the person desiring to cause such removal shall, prior to such removal, deliver to said cemetery corporation, association, corporation sole or other person owning or controlling such cemetery an affidavit duly sworn to before an officer qualified to administer oaths stating the name of the person whose remains it is desired to remove and further stating, so far as is known to the affiant, the date of burial of such remains and the names and places of residence of the heirs at law of such deceased person. In the event that the person desiring to cause such removal is not an heir at law of the person whose remains he desires to remove, such removal shall not be made by him until he shall have delivered to said cemetery corporation, association, corporation sole or other person owning or controlling such cemetery the written consent of a majority of the known heirs at law of such deceased persons who are residents of the State of Alabama. The statements in the said affidavit shall be sufficient evidence of the numbers, names and residences of such heirs at law for all of the purposes of this section, and the written consent of the majority of such heirs at law named in said affidavit shall be sufficient warrant and authority for the cemetery corporation, association, corporation sole or other person owning or controlling such cemetery to permit the removal of the remains by such person; provided further, that the purchaser or owner of any burial lot or plat in any such cemetery or part thereof or of the right of burial therein or any one of the joint purchasers or owners of such lot or plat or burial right therein may cause the removal of any or all of the remains interred in such lot or plat without the necessity of filing any affidavit of consent as hereinabove specified, and if the right, title or interest of any grantee of any burial lot or plat in such cemetery or the right of burial therein shall be passed by succession to the heir or heirs at law of such grantee without formal distribution by order of court, such heir or heirs at law may remove the remains of persons interred in any such lot or plat, and the affidavit of any such heir at law setting out the facts of such heirship shall be accepted by the cemetery corporation, association, corporation sole or other person owning or controlling such cemetery lands from which such removals are to be made as sufficient evidence for all the purposes of this section of the fact of the transfer of such title or right of burial to such heir or heirs at law as alleged in said affidavit."

The following is another example of a state's laws dealing with exhumation of remains:

"Counties, anywhere within the county boundaries, and municipalities, anywhere within the municipal boundaries, are authorized, jointly and severally, to preserve and protect any abandoned cemetery or any burial ground which the county or municipality determines has been abandoned or is not being maintained by the person who is legally responsible for its upkeep, whether or not that person is financially capable of doing so, to expend public money in connection therewith, to provide for reimbursement of such funds by billing any legally responsible person or levying upon any of his property as authorized by local ordinance, and to exercise the power of eminent domain to acquire any interest in land necessary for that purpose.

No known cemetery, burial ground, human remains, or burial object shall be knowingly disturbed by the owner or occupier of the land on which the cemetery or burial ground is located for the purposes of developing or changing the use of any part of such land unless a permit is first obtained from the governing authority of the municipal corporation or county wherein the cemetery or burial ground is located, which shall have authority to permit such activity except as provided in Code Section 36-72-14.

Application for a permit shall include, at a minimum, the following information:

  1. Evidence of ownership of the land on which the cemetery or burial ground is located in the form of a legal opinion based upon a title search;
  2. A report prepared by an archeologist stating the number of graves believed to be present and their locations as can be determined from the use of minimally invasive investigation techniques, including remote sensing methods and the use of metal which activities shall not require a permit;
  3. A survey prepared by or under the direction of a registered surveyor showing the location and boundaries of the cemetery or burial ground based on an archeologist's report;
  4. A plan prepared by a genealogist for identifying and notifying the descendants of those buried or believed to be buried in such cemetery. If those buried or believed to be buried are of aboriginal or American Indian descent, the genealogist, in preparing the notification plan, shall consult with the Council on American Indian Concerns created pursuant to Code Section 44-12-280 and shall include in the notification plan not only any known descendants of those presumed buried but also any American Indian tribes as defined in paragraph (2) of Code Section 44-12-260 that are culturally affiliated; and
  5. A proposal for mitigation or avoidance of the effects of the planned activity on the cemetery or burial ground. If the proposal includes relocation of any human remains or burial objects, the proposal shall specify the method of disinterment, the location and method of disposition of the remains, the approximate cost of the process, and the approximate number of graves affected.
  6. Within 30 days after the conclusion of the public hearing, the governing authority shall notify the applicant in writing of its decision. The governing authority shall have the authority to deny the application with written reasons therefor, to issue a permit adopting the application in whole or in part, or to issue a permit which may include additional requirements to mitigate the proposed activity's adverse effects on the cemetery or burial ground, including but not limited to relocation of the proposed project, reservation of the cemetery or burial ground as an undeveloped area within the proposed development or use of land, and respectful disinterment and proper disposition of the human remains. The governing authority may adopt the applicant's proposal for mitigation.

    The governing authority shall consider the following in making its determination:

    1. The presumption in favor of leaving the cemetery or burial ground undisturbed;
    2. The concerns and comments of any descendants of those buried in the burial ground or cemetery and any other interested parties;
    3. The economic and other costs of mitigation;
    4. The adequacy of the applicant's plans for disinterment and proper disposition of any human remains or burial objects;
    5. The balancing of the applicant's interest in disinterment with the public's and any descendant's interest in the value of the undisturbed cultural and natural environment; and
    6. Any other compelling factors which the governing authority deems relevant."