“Preneed sales contract" means an agreement for the sale of cemetery services and merchandise that is to be delivered after the date of the initial payment for the cemetery services and merchandise, or for the sale of an undeveloped space.
“Preneed trust fund" means an account or other investment in which a portion of the cemetery services and merchandise received under a preneed sales contract is deposited.
“Professional land surveyor" means a professional land surveyor licensed under ch. 443
“Public mausoleum" means a mausoleum in which at least one mausoleum space is offered for sale to the general public.
“Religious association" means any church, synagogue, or mosque; any religious society organized under ch. 187
; and any corporation whose articles of organization provide, subject to s. 182.030
, that it shall be under the supervision and control of a church, synagogue, mosque, or religious society.
“Sale" means a transfer for consideration of any interest in ownership, title or right to use.
“Undeveloped space" means a mausoleum space that is not ready for the burial of human remains on the date of the sale of the mausoleum space.
Cemetery associations; creation; powers and duties. 157.062(1)(1)
Seven or more residents of the same county may form a cemetery association. They shall meet, select a chairperson and secretary, choose a name, fix the annual meeting date, and elect by ballot not less than 3 nor more than 9 trustees whom the chairperson and secretary shall immediately divide by lot into 3 classes, who shall hold their offices for 1, 2, and 3 years, respectively. Within 3 days, the chairperson and secretary shall certify the corporate name, the names, home addresses, and business addresses of the organizers and of the trustees, and their classification, and the annual meeting date acknowledged by them, and, except as provided in sub. (9)
, deliver the certification to the cemetery board. The association then has the powers of a corporation.
The association may change its name, the number of trustees, or the annual meeting date by resolution at an annual meeting, or special meeting called for such purpose, by a majority vote of the members present, and, except as provided in sub. (9)
, by delivering to the cemetery board a copy of the resolution, with the date of adoption, certified by the president and secretary or corresponding officers.
When there shall have been a bona fide attempt to organize a cemetery association, but a failure to record a properly drawn and executed certificate of organization, and it has in good faith bought and platted grounds and conveyed cemetery lots and carried on business for over 25 years, the same shall be a body corporate from the date of conveyance to it of real estate, and its transfers and other transactions are validated.
An annual election shall be held during the annual meeting. The annual meeting, and any special meeting described in sub. (2)
, shall be held at a place in the county chosen by the trustees upon public notice as required by the bylaws. Trustees chosen after the first election shall be proprietors of cemetery lots in the cemetery, residents of the state, and hold office for 3 years. Election shall be by ballot and a plurality shall elect. Each owner of one or more cemetery lots is entitled to one vote, and one of several owners of a cemetery lot, designated by the majority of them, shall cast the vote.
If the annual election is not held on the day fixed for the annual meeting, the trustees may appoint another day, not more than 60 days after the annual meeting, and give public notice of time and place, and if an election is not so held 5 members may apply to the judge of a court of record in the county for an order granting power to hold an election, by publishing in the county a class 2 notice, under ch. 985
, of the application and the judge shall grant the application, and election shall then be held upon like notice. The terms of trustees expire on the date of the annual meeting in the year in which they are scheduled to expire, except that if no election is held at the annual meeting the terms expire on the date of the next election held under this paragraph.
(5) Trustees; duties, report.
The trustees may fill vacancies for the unexpired term. One shall be chosen president, and they shall appoint a secretary and treasurer, and may require security of the treasurer. The trustees shall manage the affairs and property of the association and control and beautify the cemetery, and may establish regulations for those purposes. The trustees shall make and file written reports as required in s. 157.62 (1)
The association is dissolved by failure to hold an annual election for 3 successive years.
If an association that has been dissolved under par. (a)
, or any group that was never properly organized as a cemetery association, has cemetery grounds and human remains are buried in the cemetery grounds, 5 or more members, or persons interested as determined by order of the circuit judge under par. (c)
, may publish a class 3 notice, under ch. 985
, in the municipality in which the cemetery is located, of the time, place, and object of the meeting, assemble and reorganize by the election of trustees and divide them into classes as provided in sub. (1)
, the commencement of the terms to be computed from the next annual meeting date. The secretary shall enter the proceedings of the meeting on the records. The association is reorganized upon delivery of a copy of the proceedings to the cemetery board, except as provided in sub. (9)
. Upon reorganization, the title to the cemetery grounds, trust funds, and all other property of the association or group vests in the reorganized association, under the control of the trustees. The reorganized association may continue the name of the dissolved association or may adopt a new name.
If an association is dissolved under par. (a)
or any group has never been properly organized as cemetery association, and there are fewer than 5 members living or residing in the county where the cemetery is located, the circuit judge for the county shall upon the petition of any person interested, make an order determining who are persons interested in the cemetery. Any adult person who owns an interest in any cemetery lot in the cemetery, who is related to any person buried in the cemetery, or who is a descendant, brother, sister, nephew, niece or surviving spouse of a member of the dissolved association, is an interested person. The circuit judge may make the order upon evidence he or she deems sufficient, with or without hearing. The order need not contain the names of all persons interested, but shall contain the names of at least 5 such persons.
The cemetery board may prescribe and furnish forms for providing the information required under subs. (1)
(7) Tax for maintenance.
When a cemetery association having control of a cemetery in a town, village or city of the third or fourth class has insufficient maintenance funds it may certify in writing to the clerk of such town, city or village the amount deemed necessary during the next ensuing year, the amount the association has therefor, and the deficiency, and the governing body of such town, city or village may levy and collect a tax therefor and pay the same to the association. If the cemetery is in more than one such municipality the deficiency shall be equitably distributed. If a cemetery located wholly within a town, village or city of the third or fourth class has also buried therein decedents from an adjoining municipality, the association having insufficient funds, the association may certify in writing to its municipal clerk and to the clerk of such other municipality, the amount deemed necessary for the ensuing year, the amount the association has therefor, the amount of the deficiency and the equitable amount that each municipality should contribute; whereupon the governing body of each such municipality may levy and collect a tax therefor and pay the same to the association.
(8) Limited liability of trustees and officers. 157.062(8)(a)(a)
Except as provided in pars. (b)
, a trustee or officer of a cemetery association organized under this section is not liable to the association, its members or creditors, or any person asserting rights on behalf of the association, its members or creditors, or any other person, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a trustee or officer, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:
A willful failure to deal fairly with the association or its members in connection with a matter in which the trustee or officer has a material conflict of interest.
A violation of criminal law, unless the trustee or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.
A transaction from which the trustee or officer derived an improper personal profit.
Except as provided in par. (c)
, this subsection does not apply to any of the following:
A civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency.
A proceeding brought by any person for a violation of state or federal law where the proceeding is brought pursuant to an express private right of action created by state or federal statute.
The liability of a trustee or officer arising from a breach of, or failure to perform, any duty relating to the receipt, handling, investment or other use of care funds or any other funds made in trust.
Paragraph (b) 1.
does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.
This subsection does not apply to a cemetery association organized under this section if any part of the association's income is distributable among its members, trustees or officers.
(9) Exemptions for certain cemeteries.
In lieu of delivering a certification, resolution, or copy of proceedings to the cemetery board under sub. (1)
, or (6) (b)
, a cemetery association that is not required to be licensed under s. 440.91 (1)
or registered under s. 440.91 (1m)
shall deliver the certification, resolution, or copy of proceedings to the office of the register of deeds of the county in which the cemetery is located.
Under sub. (4), cemetery association voters must be lot owners. Heirs of deceased lot owners are entitled to vote in cemetery association elections. 69 Atty. Gen. 132.
Cemetery associations and religious associations; holding property; change of ownership. 157.064(1)(1)
A cemetery or religious association authorized to hold lands for cemetery purposes may take and hold not more than 80 acres of land, to be used exclusively for burial of the dead, and personal property not exceeding $250,000 in value, to promote the objects of the association; and if the cemetery is near to or within a 3rd class city the association may so take and hold not more than 160 acres of land; and if near to or within a 1st or 2nd class city, not more than 240 acres.
A cemetery or religious association incorporated in this state and having a cemetery in or near a 1st or 2nd class city and any cemetery described under s. 157.065 (3m) (d)
may acquire by gift or purchase up to 30 acres of adjoining lands for cemetery purposes, and may pay for it wholly or partly from its cemetery lot sales.
When it is necessary to enlarge a cemetery owned by a cemetery or religious association, and adjoining lands cannot be acquired or can be acquired only at an exorbitant price, application may be made in writing to the circuit judge by 12 or more resident freeholders of the municipality in which the cemetery is located describing the land and setting forth the facts and the price asked, whereupon the judge shall appoint 3 resident freeholders of the county, but not of the municipality, to appraise the damages of each owner, not to exceed the price asked, but, except in cities or incorporated villages, no lands may be taken within 330 feet of a residence owned by the occupant without the occupant's written consent. The appraisers shall hear all parties upon 10 days' notice and file a report in writing with the judge within 10 days after determination. Upon payment into court of the amount appraised, the lands shall be taken. Either party may appeal as provided in s. 32.06 (10)
. The commissioners shall be paid, by the party seeking to take the land, $3 for each day actually employed and 6 cents for each mile necessarily traveled.
Whenever a cemetery association votes to convey cemetery property and all trust funds pertaining to the cemetery property to a city, village or town, the trustees of the association shall have the power to transfer the property upon the acceptance of the transfer by resolution of the governing body of the city, village or town. A conveyance under this subsection is subject to s. 157.08 (2)
Whenever the majority of the members of a cemetery association, or of a religious association authorized to hold lands for cemetery purposes, present at an annual meeting or special meeting called for such purpose vote to convey all of the cemetery association's or religious association's cemetery property, trust funds and other property used for cemetery purposes to another cemetery association or religious association, the trustees of the association shall transfer the property upon the acceptance of the transfer by the other association by affirmative vote of a majority of its members present at an annual meeting or special meeting called for that purpose. Upon such acceptance, the title to the cemetery property, trust funds and other property of the transferring association vests in the accepting association under the control of the trustees of the accepting association. A conveyance under this subsection is subject to s. 157.08 (2)
Not more than 30 days after a transfer under sub. (6)
, the transferring association shall notify the cemetery board in writing of the transfer, including the name and address of the accepting association or its treasurer. The cemetery board may prescribe and furnish forms for providing the information required under this subsection.
History: 1977 c. 449
; 1985 a. 316
; Stats. 1985 s. 157.064; 1987 a. 190
; 1989 a. 307
; 1995 a. 27
; 2015 a. 237
Location and ownership of cemeteries. 157.065(1)(1)
No cemetery may be used for burials except any of the following:
A cemetery organized and operated by any of the following:
Except as provided in sub. (3)
, no cemetery may be established:
Within a recorded plat or recorded addition to a plat of any city or village, if the cemetery is within one mile of a building in the plat;
Outside a recorded plat or recorded addition to a plat of any city or village if the cemetery is within 3,300 feet of an inhabited dwelling that is located within a recorded plat or addition, unless the city or village consents;
Within 250 feet of any habitable dwelling, publicly owned building or school, unless the cemetery is establishing an extension on property it has owned continually since June 18, 1929; or
Within 3,300 feet of any of the following state facilities, without the consent of the state:
Any incorporated college of a religious order in a 4th class city may establish a private cemetery within the city on land the college owns to bury members of the religious order, if the common council consents and if each person owning a private building within 825 feet of the proposed cemetery consents.
Any private military academy that provides an educational program for grades 7 to 12 in a 4th class city may establish a private cemetery within the city on land that the military academy owns, if the common council consents. No mausoleum within a cemetery established under this paragraph may exceed 3,500 square feet in area.
Any of the following cemeteries may enlarge only in the following manner:
Any cemetery in a village may enlarge with the consent of the village board and of the owners of each building within 250 feet of the addition.
Any cemetery in a 3rd or 4th class city may enlarge with the consent of the common council.
Notwithstanding pars. (a)
, any cemetery established before April 30, 1887, in a village and located within 100 feet of the village limits may extend to the village limits with the consent of the village board.
Notwithstanding pars. (a)
, any cemetery established before April 30, 1887, may expand as provided in s. 157.064
Any violation of this section is a public nuisance.
Connection with funeral establishment prohibited. 157.067(1)(1)
In this section, “funeral establishment" has the meaning given in s. 445.01 (6)
, except that “funeral establishment" does not include a building or part of a building that is erected under s. 157.11 (1)
for holding or conducting funeral services if dead human bodies are not embalmed, cared for, or prepared for burial or transportation, in the building.
No cemetery authority may permit a funeral establishment to be located in the cemetery. No cemetery authority may have or permit an employee or agent of the cemetery to have any ownership, operation or other financial interest in a funeral establishment. Except as provided in sub. (2m)
, no cemetery authority or employee or agent of a cemetery may, directly or indirectly, receive or accept any commission, fee, remuneration or benefit of any kind from a funeral establishment or from an owner, employee or agent of a funeral establishment.
A cemetery authority may accept a fee or remuneration from a funeral establishment or from an owner, employee or agent of a funeral establishment if all of the following requirements are satisfied:
The fee or remuneration is a payment to the cemetery authority for a burial in the cemetery authority's cemetery.
The fee or remuneration payment is made on behalf of the person who is responsible for paying for the funeral establishment's services.
The funeral establishment will be reimbursed for the fee or remuneration by charging the person who is responsible for paying the funeral expenses an amount that is identical to the amount of the fee or remuneration paid by the funeral establishment to the cemetery authority.
History: 1993 a. 100
; 2005 a. 266
If subsidiary corporations have prohibited financial connections, their corporate structure will not save them from the prohibitions of ss. 157.067 (2) and 445.12 (6). Those statutes are not unconstitutionally vague. Cemetery Services, Inc. v. Department of Regulation and Licensing, 221 Wis. 2d 817
, 586 N.W.2d 191
(Ct. App. 1998), 97-2115
Sub. (2) and s. 445.12 (6), which prohibit the joint ownership or operation of a cemetery and a funeral home, do not violate the equal protection or due process clauses of the Wisconsin and U.S. constitutions. Porter v. State, 2018 WI 79
, 382 Wis. 2d 697
, 913 N.W.2d 842