Home Funeral Legal Issues

Whether you can legally transport the body to the cemetery or crematory depends largely on which state you reside in. Each state has its own laws regarding who can transport the body of someone who has died. In states where a transporter’s license is required, transportation must be handled by a licensed funeral director. Additionally, if you have to transport the body across state lines or internationally, you must acquire specific documentation, such as a burial transit permit and ensure that your transport adheres to the laws of the states or countries where you are traveling. For example, some have a general requirement that the body must be refrigerated during transport or embalmed prior to transporting.

In addition to obtaining the correct paperwork and gaining familiarity with state laws, another important factor to consider regarding the transportation of the body is whether you are using an appropriate container. Many cemeteries and crematories will not accept the body if it is not encased in a suitable container that can securely contain odors and fluids. If you are in a state where it is legal to transport the body independently, you can contact the cemetery or crematory ahead of time to discuss their requirements.

Overall, although it is legally possible to transport a body to the cemetery or crematory on your own, there are a lot of logistical factors to take into consideration. This can quickly become overwhelming, particularly if you are also managing other aspects of the final arrangements or if the steps for transport are not clearly defined. If you are ever in doubt during this process, reaching out to a local funeral home or crematory can help connect you with industry professionals who can provide additional support and guidance. 

Sources

“Deceased Transportation: What You Need to Know About Transporting Human Remains.” FuneralWise. https://www.funeralwise.com/funeral-arrangements/deceased-transportation/ 

“How to Transport a Body Via Ground.” EverPlans. https://www.everplans.com/articles/how-to-transport-a-body-via-ground

In most states in the U.S., hiring a funeral director to assist with a home funeral is not required. Further, in all states, you are legally allowed to keep the body in the home and prepare it for burial or cremation. However, some states do mandate the involvement of a funeral director to some degree. The National Home Funeral Alliance maintains a list of state laws, which you can review to determine whether working with a funeral director is mandated in your state.

It is important to note, however, that even though you may not be legally obligated to hire a professional, a funeral director or home funeral guide can be very helpful in handling some of the logistics. Funeral directors typically have relationships with local crematories and cemeteries and can facilitate arrangements for final disposition, leaving you with more time to spend with the person who died. They can also help arrange transportation of the body to its final resting place, handle paperwork, and provide expert advice on details around after-death care. Sometimes, people who are conducting their first home funeral find that having the presence of a deathcare professional brings peace of mind if there are any unexpected concerns that arise.

Sources

“Home Funerals”. Order of the Good Death. https://www.orderofthegooddeath.com/resources/home-funerals/ 

“State Laws”. National Home Funeral Alliance. https://www.homefuneralalliance.org/state-laws.html

Although home funerals typically occur at a private residence, such as the home of the person who died, many alternative locations can be used if necessary. It is not always possible to have a home funeral in a household or an apartment due to space limitations. Some people in the household may not be comfortable with having a home funeral, even though others may value the idea of increased privacy and a closer connection with visitors. Likewise, those who are unhoused often lack a physical address where a “home” funeral can be held. Being mindful of this, these funerals can be held in other spaces such as the residence of another member of the community, a church, an event venue or another larger community space. 

More often than not, people in the community are willing to open up their space for a home funeral if they are aware of the circumstances that are interfering with the logistics. Reaching out to local deathcare groups, environmental organizations, religious organizations, and other collectives can be helpful if no one in an immediate social circle can provide a space for a home funeral. If possible, some people may choose a location that was special or significant to the person who died. As with any funeral preparations, it is important to note that each state typically has requirements or regulations regarding how public spaces can be used. If you are in doubt about whether a space, such as an events venue, can be used for a home funeral, reach out to the state funeral board or the health department to check.

Sources

“What is a Home Funeral?” Larkspur Conservation. https://larkspurconservation.org/home-funerals 

“Home Funerals and Burials”. FuneralWise. https://www.funeralwise.com/funeral-customs/home-funerals-burials/ 

Home funerals are still very rare in most parts of the United States, so it would not be unusual for the staff at the hospital or nursing home where your loved one died to balk at your request to take your loved one’s body home. Most healthcare providers are unsure of how to honor such a request or if it is even legal to do so. Additionally, some providers have policies in place that only allow a body to be released to a designated agent of a funeral home, regardless of state law. 

Your best defense against obstructive staff members is to prepare in advance. Before your loved one dies, gather the necessary “ammunition” to support your cause for taking them home after death. Start by educating yourself about your state’s legal requirements around final disposition. (You can find a quick overview on Nolo.)  Many states have no restrictions, while others require the involvement of a funeral director at some point (for example, to file the death certificate). Some states also require that a burial transit permit be issued before the body can be moved. If possible, get a written copy of the law. You may need to show it to hospital staff.

In addition to researching your state laws, contact an advocate who can assist you when the time to claim the body comes. Let them know that you don’t know if you will run into difficulty, but want to have somewhere to turn if you do. The National Home Funeral Alliance suggests you reach out to any of the following people or agencies:

• A home funeral guide 
• Your local Funeral Consumer Alliance office
• A clergy member who knows you
• Your local town or city clerk
• A home funeral-friendly funeral director 
• A law enforcement officer who understands your state’s funeral law
• Your State’s Attorney General’s office

You may wish to alert your attorney and have them contact the care provider in advance of your loved one’s death. They may be able to work with the hospital’s or care home’s administrators or attorney to ensure that staff know of your wishes and are prepared to carry them out. 

If, despite all your preparations, you are still having difficulty claiming a loved one’s body at the time of death, ask to speak to an administrator, a patient advocate or an ombudsman. Stay calm, and call the person who agreed to act as your advocate if they are not already present. Get the name and professional designation of the person you’ve been speaking with (for example, unit charge nurse, nurse supervisor, physician or administrator), and ask to see a copy of the policy that they are invoking when denying your request. 

Keep in mind, too, that sometimes staff members will use the word “liability” when denying a family’s request. If this happens to you, remind them that there is no liability to the provider for releasing a dead body to the next of kin, just as they would not be legally liable for releasing a living person to the custody of the individual legally responsible for their care. However, the hospital or nursing home might be legally liable for releasing the body to a commercial funeral service provider over the family’s clearly expressed objections. 

Finally, be persistent. You have a legal and moral right to claim your loved one’s body, and you have every reason to insist that the care provider honor that right. 

Sources

“Burial and Cremation Laws”. NOLO. https://www.nolo.com/legal-encyclopedia/burial-cremation-laws