Burials and State Laws

Today’s Slate Examiner uses a story in the Daily Mirror about Michael Jackson’s request to be buried at his Neverland ranch to pose the question: is it legal to be buried in your own backyard? The answer is, well, it depends on the state:

In general, zoning boards in cities and suburbs aren’t going to let you bury Grandma in your backyard. (Washington, D.C., for example, discourages it.) In rural areas, though, it’s fairly common. Costs vary, too. In California, the only outlay is the $400 application fee [to have your property declared a cemetery]. But in Washington state, you have to pay $25,000 to establish an “endowment care trust.” Many states have their own twists on burial regulations. In New York, for example, you need a funeral director present during the burial. In Michigan, the burial plot is exempt from taxation. In Washington state, a dead human fetus of less than 20 weeks is not considered “human remains” and can be buried anywhere. A fetus of more than 20 weeks must be buried according to the regular laws.

As it turns out, death is perhaps one of the areas where states have the greatest variation in their laws, which poses questions about interstate commerce and federalism. In 2006, my colleague Jerry Ellig coauthored a law review article about the interstate sale of caskets, suggesting that some state laws prohibiting the direct sale of caskets could violate the interstate commerce clause. This “casket monopoly” has indeed been litigated by the Institute for Justice, as have Maryland’s restrictions on ownership of funeral homes. More discussion of this question is available in this podcast.

Some states issue birth certificates for stillborn children, while others do not. Alabama passed a law in 2008 that requires funeral directors to be US citizens or legally resident.

The property and remains of the deceased is handled differently in different states. Probate court laws vary from state to state. Here is a list of funeral laws by state. It doesn’t appear that any states have laws about the scattering of ashes, but you’re advised not to do so at Disneyland.