MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Judiciary A
By: Representative Banks
AN ACT TO AMEND SECTION 41-43-33, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ANY NEW PERPETUAL CARE CEMETERY ORGANIZED ON OR AFTER JULY 1, 2020, MUST NOT BE SMALLER THAN A CERTAIN SPECIFIED ACREAGE; TO AMEND SECTION 41-43-37, MISSISSIPPI CODE OF 1972, TO INCREASE THE AMOUNT OF THE INITIAL DEPOSIT REQUIRED TO BE MADE INTO AN IRREVOCABLE PERPETUAL CARE TRUST FUND FOR ANY CEMETERY ORGANIZED ON OR AFTER JULY 1, 2020; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-43-33, Mississippi Code of 1972, is amended as follows:
41-43-33. (1) Any person, partnership, corporation or other organization organized or engaging in business under the laws of the State of Mississippi, whether for profit or not-for-profit, or wheresoever organized and doing business in the State of Mississippi, of owning, maintaining or operating a cemetery, providing lots or other interment space therein for the remains of human bodies, except such organizations and cemeteries that are affiliated with or owned by churches or religious societies, established fraternal societies, municipalities, other political subdivisions of the State of Mississippi, or family cemeteries or family burial grounds, and community cemeteries that provide burial lots at no charge, or sell burial lots to the public, shall be subject to the provisions of Section 41-43-31 et seq.
(2) From and after July 1, 2009, all new cemeteries must be perpetual care cemeteries unless exempt under the provisions of this section.
(3) Any new perpetual care cemetery organized on or after July 1, 2020, must not be smaller than the acreage specified below:
(a) Cemeteries located in a county with a population of more than one hundred forty thousand (140,000), according to the most recent federal decennial census at the time that the cemetery is organized, must not be smaller than forty (40) acres.
(b) Cemeteries located in a county with a population of more than seventy-five thousand (75,000) but not more than one hundred forty thousand (140,000), according to the most recent federal decennial census at the time that the cemetery is organized, must not be smaller than thirty (30) acres.
(c) Cemeteries located in a county with a population of not more than seventy-five thousand (75,000), according to the most recent federal decennial census at the time that the cemetery is organized, must not be smaller than twenty (20) acres.
SECTION 2. Section 41-43-37, Mississippi Code of 1972, is amended as follows:
41-43-37. (1) The owner of
every cemetery * * *
subject to the provisions of Section 41-43-31 et seq., that is organized,
begins or continues to do business in the State of Mississippi after July 1,
2009, shall provide for the creation and establishment of an irrevocable
perpetual care trust fund, the principal of which shall permanently remain
intact except as hereinafter provided and only the income thereof shall be
devoted to the perpetual care of the cemetery. The perpetual care trust fund
shall not be subject to the claims of the cemetery's creditors and shall not be
used as collateral, pledged, encumbered or placed at risk. This fund shall be
created and established as follows:
(a) In respect to a cemetery for earth burials, by the application and payment thereto of an amount equivalent to fifteen percent (15%) of the sale price, or Forty Cents (40¢) per square foot of ground interment rights sold, whichever is greater;
(b) In respect to an above-ground community or public mausoleum, by the application and payment thereto of an amount equivalent to five percent (5%) of the sale price, or Fifty Dollars ($50.00) per crypt sold, whichever is greater;
(c) In respect to the placement of an above-ground, free-standing or private mausoleum, by the application and payment thereof of an amount equivalent to fifteen percent (15%) of the sale price for the ground interment right upon which the private mausoleum is installed and five percent (5%) of the sales price as determined by the customer's invoice for the purchase price of the private mausoleum; and
(d) In respect to a community columbarium, by the application and payment thereto of an amount equivalent to five percent (5%) of the sale price, or Ten Dollars ($10.00) per niche sold, whichever is greater.
For any sale of a lot for an earth burial, mausoleum crypt or columbarium niche in which payment is made by the purchaser on an installment basis over time, the percentage required to be trusted shall be paid into the perpetual care trust fund calculated on each payment.
(2) From the sale price the owner shall pay to the perpetual care fund an amount in proportion to the requirements in subsection (1) of this section, which payment shall be in cash, check, money order or electronic transfer and shall be deposited with the custodian or trustee of the fund not later than the fifth day of the following month from when funds are received.
(3) If the perpetual care trust fund principal is Fifty Thousand Dollars ($50,000.00) or less, a perpetual care cemetery may maintain certificates of deposit that mature every thirty (30) days issued by an institution whose deposits are insured by the Federal Deposit Insurance Corporation. Certificates of deposits held by a cemetery for perpetual care under this subsection shall renew automatically with all earned interest added to principal for each successive renewal. Collections owed to trust from sales under subsection (1) of this section shall be added upon the next maturity date of the certificate rather than the fifth day of the following month as required by subsection (2) of this section. Certificates of deposit meeting the requirements of this subsection shall contain the words, "For Perpetual Care," in the caption of the certificate. Each perpetual care cemetery electing to maintain certificates of deposit under this subsection shall file documentation from the issuer with the Office of the Secretary of State with the submission of the annual report. Once the perpetual care principal from the cemetery's operations exceeds Fifty Thousand Dollars ($50,000.00), such funds shall be held in an irrevocable trust managed by a trustee and governed by a trust instrument.
(4) In addition to the
provisions of subsections (1) and (2) of this section, any cemetery organized
after July 1, 2009, and before July 1, 2020, or any mausoleum or
columbarium that is built at any location other than upon property owned by an
existing cemetery after * * *that date July 1, 2009, and before July 1, 2020,
whether it is by incorporation, association, individually or by any other
means, or having its first burial after that date, shall, before disposing of
any burial lot or right or making any sale thereof and/or making its first
burial, cause to be deposited the sum of Twenty-five Thousand Dollars
($25,000.00) in cash into an irrevocable perpetual care trust fund as provided
in subsection (1) of this section for the maintenance of the cemetery.
(5) In addition to the provisions of subsections (1) and (2) of this section, any cemetery organized on or after July 1, 2020, or any mausoleum or columbarium that is built at any location other than upon property owned by an existing cemetery on or after July 1, 2020, whether it is by incorporation, association, individually or by any other means, or having its first burial after that date, shall, before disposing of any burial lot or right or making any sale thereof and/or making its first burial, cause to be deposited the sum of Fifty Thousand Dollars ($50,000.00) in cash into an irrevocable perpetual care trust fund as provided in subsection (1) of this section for the maintenance of the cemetery.
( * * *6) Whenever * * * a cemetery to which subsection
(4) of this section applies has deposited in the perpetual care fund, as
required by this section, a sum amounting to Fifty Thousand Dollars
($50,000.00), it shall submit proof of that fact to its trustee, and it shall
be the duty of the trustee to thereupon pay over to the cemetery the amount of
Twenty-five Thousand Dollars ($25,000.00) so originally deposited by it in the
perpetual care fund.
(7) Whenever a cemetery to which subsection (5) of this section has deposited in the perpetual care fund, as required by this section, a sum amounting to One Hundred Thousand Dollars ($100,000.00), it shall submit proof of that fact to its trustee, and it shall be the duty of the trustee to pay over to the cemetery the amount of Fifty Thousand Dollars ($50,000.00) so originally deposited by it in the perpetual care fund.
( * * *8) The perpetual care fund shall be
permanently set aside in trust to be administered under the jurisdiction of the
Secretary of State. The Secretary of State shall have full jurisdiction
over the reports and accounting of trustees and the amount of a surety bond
required, if any. The trust officer or trustee responsible for the investment
of funds shall be affiliated with an established bank, trust company, other
financial institution or financial services company. Only the income from the
fund shall be used for the care and maintenance of the cemetery for which it
was established.
( * * *9) Each geographic location of a
cemetery shall constitute a separate and distinct cemetery for the purpose of
interpretation and application of this section.
( * * *10) The Secretary of State shall
develop and implement a registration system for perpetual care cemeteries
subject to this chapter. The Secretary of State is authorized to promulgate
rules and regulations for the development and implementation of a statewide
registry and to collect a registration fee not to exceed Twenty-five Dollars
($25.00) per year to be paid at the same time as the reports and accountings
required by Section 41-43-38 are due.
( * * *11) To assist with the development of
a statewide registry of perpetual care cemeteries, the county boards of
supervisors in conjunction with the chancery clerks shall provide the Secretary
of State with a list of all perpetual care cemeteries and other pertinent
information regarding perpetual care cemeteries situated in their respective
counties no later than October 31, 2009.
SECTION 3. This act shall take effect and be in force from and after July 1, 2020.