The grave was recognized as ownerless: how to challenge and get your rights back
The status of an "orphan grave" in Russia remains one of the most controversial topics in the field of funeral business. Despite the apparent simplicity of the issue, in practice it affects both civil, administrative and ethical regulation. The fate of the burial site after death or loss of contact with the person responsible for its maintenance is not actually regulated at the federal level. The thing is that Federal Law No. 8-FZ of January 12, 1996 "On Burial and Funeral Business" ("Law No. 8-FZ") was created as an act ensuring decent burial, but not as a comprehensive regulation of the legal regime of burial for the entire period of its existence. As a result, a legal gap has formed, which in practice is being filled by regional and municipal acts. It is in this gap that relatives of the deceased find themselves, in the absence of a clear understanding of their rights and effective mechanisms for their protection. The information about when a grave is recognized as ownerless and what to do if a relative's burial is recognized as such is in the Izvestia article.
Why is there no "orphan grave" in the law?
The term "orphan grave" is widely used in everyday life, but it is legally incorrect. In accordance with art. 225 of the Civil Code of the Russian Federation ("Civil Code of the Russian Federation"), an item that does not have an owner can be recognized as ownerless. This design is not applicable to burial.
Land plots under public cemeteries are owned by municipalities by virtue of law, regardless of the state registration of the right. This follows from paragraph 1 of Article 19 of the Land Code of the Russian Federation ("CC RF"), paragraph 23 of Part 1 of Article 16 of Federal Law No. 131-FZ "On General Principles of Organization of Local Self-Government in the Russian Federation" and Article 18 of Law No. 8-FZ. This position has already been confirmed by the courts, including in case no. A41-68544/2020.
In addition, clause 9, clause 4, Article 27 of the CC RF classifies such plots as withdrawn from circulation: they cannot be sold, donated or transferred to private ownership. Simply put, there is always an owner of the land, and this is the municipality. When they talk about an "orphan grave," they mean that no one cares for or is responsible for a particular burial. It is this distinction that is not directly fixed in the federal law, and hence most of the practical problems arise, lawyers say.
The right to burial is of a special nature. This is not a right of ownership in the classical sense, but a specific right of use related to the identity of the deceased and the obligation to maintain the burial site in proper condition. It is also related to the constitutional principle of respect for the dignity of the individual (Article 21 of the Constitution of the Russian Federation).
— The person who has been given a place to bury is assigned the status of the person responsible for the burial, which gives the right to take care of the grave, dispose of the place, and bury relatives. In other words, we are referring not to the ownership of land, but to a special legal status," the press service of the Federal Notary Chamber (FNP) told Izvestia.
Three different twenty-year terms, and none of them means mismanagement.
It is widely believed that 20 years is a universal term after which a grave can be declared ownerless. This term is found in the legislation, but each time with a different meaning.
Firstly, Part 6 of Article 16 of Law No. 8-FZ regulates the use of the territory after the transfer of the cemetery. We are talking about the cemetery as a whole, not about a single grave.
Secondly, paragraph 61 of SanPiN 2.1.3684-21, approved by Resolution No. 3 of the Chief State Sanitary Doctor of the Russian Federation dated January 28, 2021, establishes a sanitary period before possible reuse of the site. It is related to the decomposition of the remains and has nothing to do with the rights of relatives.
Thirdly, regional acts, such as Moscow Government Decree No. 260-PP, use a twenty-year period as one of the criteria for abandonment.
— In this case, we are talking about different legal regimes by their nature: sanitary, urban planning and administrative. Their mixing in law enforcement practice leads to an erroneous perception of the twenty—year term as a universal criterion of mismanagement, whereas in fact it performs other functions and is not associated with the loss of rights to the place of burial," explains lawyer Mark Varshaver in a conversation with Izvestia.
Who sets the status of an abandoned burial
The recognition of a burial site as abandoned falls within the competence of local self-government bodies and organizations authorized by them (Articles 18, 25, 29 of Law No. 8-FZ). In cities of federal significance, these functions can be performed by subordinate institutions, for example, GBU Ritual in Moscow.
There is no single federal procedure, as each region sets its own rules. The procedure usually looks like this: an inventory of the cemetery is carried out, the commission examines the sites, records the condition of the graves, checks archival data and tries to identify relatives or the person responsible. If such persons are found, they are notified and given a period (usually about a year) to put the grave in order. Only after that, in the absence of a reaction, the burial can be considered abandoned.
— Documents drawn up in violation of the established procedure, for example, without photofixation or signatures of authorized persons, have no legal force. Private individuals and commercial organizations do not have the right to conduct such inspections and draw up relevant acts," lawyer Mark Varshaver draws attention.
What signs indicate abandonment?
The decision to recognize a burial site as abandoned is made based on a combination of factors. First of all, the condition of the grave is assessed: overgrowth, debris, destroyed monuments or fences. The lack of care and visits is taken into account: there are no flowers, traces of cleaning, landscaping. The issue of identification is also important — if the plaques are missing or unreadable, it becomes difficult to identify the buried person.
In addition, the availability of information about the responsible person and his reaction to notifications is checked. In municipal practice, the period of absence of care, which is considered long, usually ranges from two to seven years. The administrative features are evaluated: the availability of information about the responsible person in the cemetery registers. In Moscow, accounting is conducted in the Unified automated system "Ritual".
All these signs are of a sanitary and administrative nature and by themselves do not terminate the rights of relatives arising from Articles 21 of the Constitution of the Russian Federation and Articles 5, 7 of Law No. 8-FZ.
Judicial practice: what courts decide about orphan graves
Judicial practice on burial disputes is not numerous, but it is significant. It is worth remembering that recognizing a burial site as abandoned is an administrative act that does not terminate its existence or deprive relatives of the right to a burial site. Loved ones have the opportunity to restore their rights and challenge this decision.
Thus, kinship can be established on the basis of a set of indirect evidence. The Savelovsky District Court of Moscow, in a decision dated 06/24/2024 in case No. 2-2538/2024, established the fact of kinship relations between the plaintiff and his great-grandfather, who died in 1956, despite the absence of part of the archival records. As evidence, the court accepted family photographs, including a picture from a 1956 funeral, marriage and birth certificates of subsequent generations, and explanations from relatives.
The court was guided by Article 264 of the Civil Procedure Code of the Russian Federation ("CPC RF") and ordered GBU Ritual to re-register responsibility for burial. It follows from this that the actual care of the grave and regular visits are taken into account by the court as additional circumstances when assessing evidence of kinship.
— The key condition for meeting the requirements is to confirm the relationship with the deceased. Even with the loss of part of the documents, the relationship can be established in court on the basis of a set of evidence," said lawyer Varshaver.
The status of the person responsible for the burial is essential. In the case of Ivanova M.V. v. GBU "Ritual", the courts of three instances refused to satisfy the claims to challenge the burial on the family plot of a person who was not related by blood to those previously buried. The courts pointed out that at the time of the disputed burial, the plaintiff was not the person responsible for the burial, and her consent was not required.
The relevant conclusions are contained in the decision of the Tagansky District Court of Moscow dated 05/23/2023 in case No. 2-1104/2023, the Moscow City Court's appeal ruling dated 11/21/2023 and the Ruling of the Second Court of Cassation of General Jurisdiction dated 04/18/2024. The Constitutional Court of the Russian Federation, in its Ruling No. 602-O dated 03/27/2025, refused to accept the complaint and confirmed that the legal regulation is aimed at streamlining relations in the field of burial.
The general conclusion from the above cases is that the courts actually recognize the existence of a special entity, the person responsible for burial, who has certain powers. At the same time, this status is not regulated in detail at the federal level. Its content is determined by regional acts and the technical standard GOST 32609-2014.
GOST 32609-2014 defines the person responsible for the burial site as the person who has undertaken to ensure the proper maintenance and care of the burial site (clause 2.1.15), and the burial certificate as a document confirming the relevant status (clause 2.2.4).
What to do if a relative's grave is recognized as ownerless
Recognizing a burial site as abandoned is an administrative act that does not in itself terminate the rights of relatives and can be challenged. The protection of rights is often carried out in two stages.
First of all, it is necessary to contact the cemetery administration or a specialized service with a written application: to request that any actions regarding the site be suspended, provide the documents on the basis of which the burial is recognized as abandoned, and register the applicant as the person responsible for the burial. The key condition is to confirm the family connection. In case of loss of documents, the relationship is established in court.
— If the administration refused or did not respond, the next step is to appeal to the district court at the cemetery location. At the same time, it is advisable to file a motion for interim measures under Articles 139-140 of the Civil Procedure Code of the Russian Federation, including a ban on the dismantling of grave structures and re—burial before the court decision enters into force," said lawyer Mark Varshaver.
The statement of claim may contain claims for recognition of the decision to declare the burial abandoned as illegal, for the obligation to register the applicant as responsible for the burial, as well as for the recovery of compensation for moral damage.
It should be borne in mind that, as a rule, the statute of limitations does not apply to the requirements for the protection of the right to burial (art. 208 of the Civil Code of the Russian Federation).
What happens to the remains if no relatives are found?
Recognizing a burial site as abandoned does not mean its liquidation. The remains remain at the burial site. Illegal destruction of graves or removal of remains entails criminal liability under Article 244 of the Criminal Code of the Russian Federation.
Before the expiration of the sanitary period, as a rule, twenty years from the date of the last burial (paragraph 61 of SanPiN 2.1.3684-21), any actions with burial are not allowed. The exceptions are exhumation by decision of a court or investigative authorities (Article 178 of the Criminal Procedure Code of the Russian Federation) and the transfer of a cemetery if there are grounds provided for in Part 2 of Article 4 of Law No. 8-FZ.
After the expiration of the sanitary period, the site can be reused, most often for reburial. The FNP press service clarified that the cemetery administration has the right to demand the consent of other relatives or responsible persons if it is a family plot.
— Exhumation of former remains, as a rule, is not carried out. The new burial is carried out in compliance with sanitary requirements, and previously buried remains remain in the lower layers of the soil," explains lawyer Varshaver.
The administration has the right to dismantle destroyed or emergency grave structures for safety and landscaping purposes. This does not mean the liquidation of the burial site and does not terminate the right to a place of burial.
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