Legal Consent for Cremation: What to Know

Updated April 29, 2022
mother and daughter discuss cremation

Legal consent is required before the body of a deceased person can be cremated. A crematorium or funeral home cannot carry out a cremation without proper consent. Consent for cremation is usually granted by the deceased person's next of kin, such as their spouse, an adult child, or their closest living relative. A person who makes prearrangement for their own funeral may opt to sign a consent for cremation at that time. In that case, no further authorization will be required after they pass away. Learn more about consent for cremation and how it relates to information that may be included with a person's Last Will and Testament.

What Is Cremation?

Cremation may serve as a funeral alternative or a post-funeral rite often chosen as an alternative to being placed in a burial casket. The cremation process involves using high temperatures and vaporization to reduce human remains to their basic chemical compounds in the form of gases and bone fragments. Cremated remains are commonly referred to as ashes, but they actually consist of bone fragments that have been pulverized into a fine sand. Cremated remains may be buried, placed at memorial sites, cemeteries, or a special mausoleum of small compartments (called a columbarium) designed to hold urns. Some families choose to keep the remains of relatives or scatter the ashes at a location of their or the deceased's choice.

Granting Legal Consent for Cremation

The requirements for granting legal consent for cremation vary greatly based on location. Each state, and some municipalities, has its own set of laws and procedures that govern the handling, preparation, and disposition of the deceased. There is not a blanket legal consent form for cremation, because requirements vary by state and the circumstances surrounding the death. The crematorium will require the person authorizing cremation to sign a document specific to their local requirements, which are defined under the civil code. You don't need to find or create a cremation consent form. Instead, the company handling the cremation will require the person who is authorizing the procedure to sign their standard form.

Addressing Cremation in the Last Will and Testament

Lawyer giving consultation

When this type of document exists, the Executor would be the one to authorize cremation rather than the deceased person's next of kin. Prior to death, the deceased, called the Testator in life, may have created a Last Will and Testament, in which an individual is named to serve as their Executor. The Executor is responsible for handling various affairs on behalf of the Testator. People sometimes include a signed and witnessed Consent for Cremation document with their will, which grants the Executor the right to authorize cremation on their behalf. This type of document specifies that the person wants to be cremated, and names a particular individual as being responsible for carrying out this wish.

  • This documentation may also specify the individual's final wishes regarding what should be done with their cremated remains.
  • It is common for a person's will to include other legal documents, such as their Living Will or Durable Power of Attorney for Health Care.
  • Some states require these documents to be signed in front of a Notary Public, which is an individual who has been authorized by the state to approve the legality of documents.

With these documents, the assigned Executor is legally enabled and bound to perform each act requested by the Testator as written. This can help prevent disputes regarding who gets to decide what will be done with the Testator's remains, but this is not the same as directly authorizing a crematorium or funeral home to do the actional cremation. The Executor will still have to sign a consent document authorizing the crematorium or funeral home to move forward.

Out-of-State Will Considerations

In some cases, an individual may have a Last Will and Testament that was drafted in a state other than the one in which the Testator died and is intended to be cremated. Most courts will respect and acknowledge an out-of-state will, as long as it was created under the guidelines of the state that the deceased lived in when their last wishes were legally documented.

What If There Is No Will?

The matter of legal consent for cremation does not have to be addressed in a person's will. If the person has no will or their will cannot be located, then their next of kin will need to authorize cremation with the funeral home or crematorium. This would only become problematic if it is not clear who the person's next of kin is, such as if they do not have a spouse, adult child, parent, or sibling. In situations such as this, typically either a close relative or close friend would file a request with the local probate court to be appointed as Administrator of the deceased's estate. When an Administrator is named by the court, that person would be able to make the choice of cremation for the deceased and give consent to the service provider.

Knowing What to Do

Colored funerary urns

It's important to understand what's involved in authorizing cremation so you'll know what to do if you find yourself in the position of being the closest living relative of a family member who has died. Your first step should be to verify what, if anything, is in the deceased individual's will with regard to their final wishes, then reach out to the funeral home or crematorium through which arrangements will be made.

U.S. Statistics on Cremation

Statistics from the Cremation Association of North America indicate that cremation has become a preferred method of the memorial. In 2005, approximately 32.6 percent of the people who died in the U.S. were cremated. By 2020, the percentage had increased to 56.1 percent. The percentage is projected to grow to nearly 73 percent by 2030.

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Legal Consent for Cremation: What to Know