United States: Scattered To The Wind: Cremation Laws And Trends

Jessica M. "Jessie" Brown is an Associate in our Anchorage office and John D. Dadakis is a Partner in our New York office.

While there was sadness with the passing of Carrie Fisher and her mother, Debbie Reynolds, within a day of one another, Carrie's brother, Todd Fisher, and her daughter, Billie Lourd, brought some levity by placing Carrie's cremated ashes into a giant Prozac pill "urn".  As Todd said: it was Carrie's "favorite thing." 

In fact, nearly half of all Americans who died in 2015 were cremated, according to the Cremation Association of North America (CANA). CANA projects that the cremation rate in the U.S. will reach 54.3 percent by 2020.  Whether it's having ashes spread at Fenway Park, Boston (years ago Boston Red Sox officials accommodated such spreading of ashes, but they have stopped doing so because the requests were too numerous), or held in a Prozac urn, there are many rules and regulations which have an impact as to the eventual disposition, posing unique challenges for families desiring to accommodate their loved ones last wishes.

Private Property

When considering the feasibility of scattering human remains, preserving and protecting private property interests is of paramount concern.  Barbara Kemmis, Executive Director of the Cremation Association of North America, shares that many individuals feel compelled to fulfill the dying wish of a loved one and neglect to observe possible legal ramifications when scattering remains without permission.  For example, in late October 2016, an individual shut down the Metropolitan Opera House in Lincoln Center, New York by appearing to scatter the remains of his mother in the orchestra pit. Apart from alarming musicians and attendees, Ms. Kemmis points out that the individual likely did not realize the ultimate result of this act:  because cremated human remains are pulverized bone with a consistency similar in texture and appearance to coarse sand, where unauthorized placement occurs, the remains are usually swept up and disposed of as waste.  For this and other reasons, many cemeteries across the United States explicitly prohibit the scattering of human remains atop a family plot, instead requiring that the ashes be interred in a niche (columbarium), grave, scatter garden, or mausoleum.

Urns

Once cremated, an individual's remains must be transported or stored in a container, commonly referred to an urn. An urn is defined in some jurisdictions as "a receptacle designed to encase cremated remains." In others, the concept is split into "permanent container" and "temporary container" categories, with permanent meaning "a receptacle made of durable material for the long-term placement of cremated remains," and temporary meaning "a receptacle made of cardboard, plastic, or other similar material in which cremated remains are placed prior to the placement of such remains in an urn or other permanent container." 

California, where Fisher was cremated, provides for a "keepsake urn," which the statute defines as "a closed durable container that will accommodate an amount of cremated remains not to exceed one cubic centimeter."  California also provides for the transportation of cremated human remains "in a durable container from the place of cremation or interment . . . by . . . any other person, with the permission of the person with the right to disposition[.]"  But California, like most other jurisdictions, requires that the urn, if buried, be encased in an "urn vault" "covered with at least three-quarters of an inch of concrete, brass, granite, marble, or metal plate, affixed to the urn or urn vault."  It is important to note the statutory and regulatory differences in transporting, storing, and permanently housing human remains.

Federal Regulations

Two federal regulations explicitly provide for, and in turn restrict, the scattering of ashes.  The first concerns national park lands, and the second addresses the requirements of burial at sea.

  • Scattering Ashes in National Park Lands

36 C.F.R. § 2.62 provides that "[t]he scattering of human ashes from cremation is prohibited, except pursuant to the terms and conditions of a permit, or in designated areas according to conditions which may be established by the superintendent."   Some federal parks have designated "scatter gardens" where individuals may scatter ashes without a permit (with the added restriction that the total group size be limited to 25 people and performed at least 100 feet from any trail, road, developed facility, or body of water).  Municipalities are considering "scatter gardens" in public parks well.

  • Burial at Sea

The Environmental Protection Agency has issued a general permit under the Marine Protection, Research and Sanctuaries Act (MPRSA) to authorize the burial of human remains at sea. The general permit is published in the federal regulations at 40 C.F.R. 229.1.

The MPRSA general permit authorizes the transportation and burial at sea of cremated human remains in ocean waters under specified conditions. The following activity is not allowed under the MPRSA general permit for burial at sea:

  • Placement of human remains in ocean waters within three nautical miles from land, with land meaning that portion of the baseline from which the territorial sea is measured which is in closest proximity to the proposed disposal site.
  • Placement of materials which are not readily decomposable in the marine environment, such as plastic or metal flowers and wreaths, urns, tombs, tombstones, gravestones, monuments, mausoleums, artificial reefs, etc.

All burials conducted under this general permit must be reported within 30 days to the Regional EPA Administrator of the Region from which the vessel departed.

State Issues and Future Trends

Many states have specific, and unique, cremation statutes.  California, for example, requires that "[a]ll aircraft used for the scattering of cremated human remains . . . be validly certified by the Federal Aviation Administration," and "[a]ll boats or vessels used for the scattering of cremated human remains . . . be registered with the Department of Motor Vehicles or documented by a federal agency[.]"  

New York recently passed legislation allowing New Yorkers to be buried with their pets at not-for-profit cemeteries, which will allow humans to be buried with their cremated pet with the cemetery's written consent, but only the pet will be cremated and only the human will appear on the headstone. 

There are many companies that will assist in placing or housing cremated remains that are not interred at a cemetery or stored at a private residence.  For instance, there are businesses in coastal states which offer "memorial reefs" where individuals can be interred in an underwater mausoleum for cremated remains. (Florida,; New England).  Or the International Scattering Society can arrange the disposition, including on Mount Everest.  And one can even have their ashes launched into space.  Another alternative might be for someone's ashes to be made into a diamond.

While many golfers may want to be scattered at Augusta National as in James Patterson's novel Miracle at Augusta, there are some rules to watch out for and some ways to accomplish that last wish of loved ones.  So whether its scattering and being lost eventually in the wind (or swept up and taken to a landfill) or it's the Prozac urn or the diamond forever, careful consideration will be  necessary in this final step of life.

Note: A discussion of the businesses profiled in this article is not an advertisement, endorsement, or guarantee of the services provided.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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