A century ago, when most Americans lived on farms or family land that went back for generations, it made perfect sense to bury loved ones close to home. But if you bring up the subject of a backyard burial today, get ready for some strange looks.
With the rising popularity of natural burials in both conventional and "green" cemeteries, it's fair to ask what's stopping us from bringing the burial process back home. We reached out to Lee Webster, president of the National Home Funeral Alliance, to learn about the legal and practical considerations you should take when planning a home burial.
Home Burials Are Legal
The good news is that home burials are completely legal — or at least not explicitly forbidden — in every state except California, Indiana, Washington and the District of Columbia. In D.C., it's a space issue, as in there is no space. In California, it's a real estate issue. The concern is that future landowners could subdivide parcels and accidentally dig up undisclosed graves. According to California law, anyone who "deposits or disposes of any human remains in any place, except in a cemetery, is guilty of a misdemeanor" and could face jail time or a fine up to $10,000.
Even if your state allows home burials, it's wise to check with your local zoning board or planning commission. Some states and individual counties have rules about the minimum distance that a burial plot needs to be from bodies of water, electrical lines, other buildings and roads. Those distances are known as setbacks. In New Hampshire, for example, plots need to be at least 50 feet (15 meters) away from a known water source and 100 feet (30 meters) from any buildings.
One result of these zoning laws is that it's all but impossible to bury someone in a suburban backyard. There simply isn't enough space on most properties to manage the setback restrictions, plus you're going to freak out the neighbors.
Consider Your Property Value
Which brings up an important consideration: property value.
"Having dead bodies on your property isn't exactly a boon where real estate is concerned," says Webster.
If you choose to bury a loved one on your land, you should think of the land as a multi-generational investment, because many folks simply won't want a piece of property with that kind of "history."
But if you own a large enough piece of land away from roads and nosy neighbors, and you don't plan on moving anytime soon, you're free to pick out a burial plot. Some tips, though:
- Choose a location far from any streams or rivers, because they erode and meander over time, which puts the loved one's remains at risk
- Pick a high point on the property that's far from the water table
- If possible, says Webster, choose the location as part of a long-term land conservation plan to preserve the space for future generations.
Once you pick a location, you will be required to create a special easement in the deed for your property. An easement provides for future public access to the grave site. You don't have to provide any physical access route like a path or road, just a clause in the deed identifying the location of the burial plot.
Some States Require a Funeral Director
After your loved one passes away, the next of kin has the legal right and responsibility to handle all of the funeral arrangements. However, there are 10 states in which a funeral director must be hired in order to file the death certificate or, in some cases, remove the body from the hospital. The most restrictive rules are in New York and Louisiana, where a licensed funeral director must oversee just about anything concerning the body or the funeral itself. See this handy guide from the National Home Funeral Alliance for your state's requirements.
In most cases, the family has the right to care for the body at home. If the burial is performed within 24 hours of death, you can skip any requirements for refrigeration or embalming. After 24 hours, some states insist on a method of preservation, particularly if the person died of an infectious disease. Again, see the link above for more information.
If you don't hire a funeral director, it's the family's responsibility to fill out and file the death certificate. The doctors or hospice staff will handle the medical portion, but you need to fill in a few personal details. The trickier part can be filing the certificate, which usually happens at a county clerk or registrar's office. If it's a Saturday or a holiday or simply after five o'clock, you'll have to wait. (Funeral directors can file electronically, 24/7.)
The good news, says Webster, is that "there are no funeral police. No one's going to come after you if you miss by a few hours. It's just a formality that has to be taken care of."
Your Property Is Technically a Cemetery
When it comes to the actual burial, several states require a minimum depth for the body, notes Webster. Only New Mexico requires the classic 6 feet (1.8 meters) and New Jersey sets the depth at 4 feet (1.2 meters). In most other circumstances there only needs to be between 18 and 30 inches (45 and 76 centimeters) of soil between the top of the body and the surface. This speeds decomposition and ensures that the body is well beyond the "smell barrier" and therefore safe from scavenging animals.
Interestingly, you don't have to create any kind of official family cemetery before burying a body on your property.
"It works in reverse," explains Webster. "Essentially, if you put a dead body on a piece of property, it becomes a cemetery. This has to do with anti-desecration law and cemetery law that goes way back to Roman times."
Once the body is laid to rest, your last legal responsibility is to notify your local cemetery trustees or commissioners of the location of the grave. They will file that information for the public record as with any other cemetery plot.
If you're interested in a home funeral for yourself or a loved one, consider contacting a home funeral guide in your area. They can help you navigate local burial laws and create a positive and family-centered end of life experience.
Originally Published: Mar 17, 2017