Can a person be buried in the backyard rather than a cemetery?

December 3, 2004

Dear Cecil:

Can a person request to be buried in his backyard rather than a cemetery? A guy in West Virginia said in June that he planned to be buried in his yard; the city council had to pass a new law to prevent it. I say a person (in California, where I live) can be buried anywhere he wants as long as he complies with health department laws, even if it is in his yard (front, back, or side).

You'd think a state as out-there as California wouldn't get twitchy over a little thing like backyard burials, but you'd be wrong. California prohibits disposal of human remains (except cremated ashes) anywhere other than in a cemetery, making it one of the most restrictive jurisdictions in the country. This may disappoint those looking forward to interment under the swing set, but don't despair--there's a loophole. In California law one definition of a cemetery is "a place where six or more human bodies are buried," full stop. A construction like that invites enterprise. I suggest nothing; I merely point out that the state is going to be looking for six bodies. How they get there is up to you.

Burial laws vary widely. The most comprehensive recent review I know of is Caring for the Dead: Your Final Act of Love by Lisa Carlson (1998), which summarizes the legal requirements for disposal of the dead in all 50 states. At the time Carlson wrote her book California imposed an unusual restriction on cremation: you could scatter ashes at sea or inter them on land within the state, but you couldn't scatter them on land--a consequence of a 1980s scandal in which a scatter-at-sea outfit was found to be dumping its dusty cargo on somebody's back lot rather than in the ocean. No other state has such a rule. (The law has since been relaxed to permit the scattering of ashes on private land with the owner's permission.)

Most other states have little to say about home burial and a few explicitly permit family cemetery plots. Regulation, if any, is generally left to local officials. My guess is you're likely to run into static if you live in a town, but you may have better luck in a rural area. West Virginia state law, for example, is largely silent on burials, so absent local ordinance you can have yourself laid to rest pretty much anywhere you'd like. To be neighborly, Carlson suggests, "a sensible guideline is 150 feet from a water supply and at least three feet of earth on top." (For most other states she indicates two feet is enough; why she figures you need an extra foot separating the living from the dead in West Virginia is a subject I'd just as soon not explore.)

New York state allows you to establish a family cemetery provided it's less than three acres and at least 1,650 feet from a dwelling, which would appear to rule out backyards in the strict sense for anybody but the Hamptons set. Whatever you think of that restriction, a worse one in Carlson's opinion is New York's requirement that a licensed funeral director "shall be present and personally supervise the conduct of each funeral service." (The law graciously allows a member of the clergy to be on hand too.) Carlson suspects, no doubt correctly, that this nonsense was stuck in there at the behest of the funeral lobby. Her chief gripe, in fact, isn't with burial laws but with the funeral industry, which manipulates people into spending far more than they need to for what is basically a simple service. Read her book, or for that matter Jessica Mitford's The American Way of Death (1963, revised 1998), and you'll refuse to get buried in anything more elaborate than a pine box.

Not all burial regulation can be dismissed as bureaucratic meddling--let's face it, some people need to be meddled with. A case in point is South Dakota farmer Arlo Koerner. In 1998 Koerner's wife Angela died of cancer at home. Deciding her body was "contaminated," Koerner and his teenage son rolled up the deceased in a bedsheet, stuffed her into a 55-gallon drum outside, and performed a low-tech cremation with a propane torch. That done (it took a while), they scattered the ashes on a gravel road. Seven months later Angela's relatives noticed she hadn't been heard from and alerted authorities. Lacking evidence of a more serious crime, officials charged Koerner with failure to comply with burial (OK, cremation) laws. This led to a legal tussle too arcane to warrant sorting out here; suffice it to say that if you're going to incinerate mom on the back deck, make sure you get a permit first.

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