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Bar News - June 17, 2015

Municipal & Governmental Law: Home Funeral and Burial in NH: A Growing Trend


Has a client ever asked you if she could be buried on her own land? In New Hampshire, the answer is yes. In fact, if she wants to, she can die at home, have her body prepared by friends, relatives or professionals in her home, have a funeral performed at home, and be buried on her own (or someone else’s) land (as long as the local zoning ordinance doesn’t prohibit private land burial).

Nine states, including Connecticut and New York, compel their citizens to patronize commercial funeral homes - but New Hampshire is not among them.

In America, the dead are usually cared for by professional funeral directors who take custody of the body after death, arrange funeral or memorial services, and dispose of the body through burial or cremation. But it hasn’t always been this way.

Deana Darby, a home funeral consultant and death midwife based in Wilton, NH, says “Historically, it was families who cared for their own at the time of death. Families and friends performed all body care, including washing and laying the body out. The coffin was often built at home or by a local carpenter. The funeral procession took place on foot or by cart, carrying the coffin from the home to church, and then to the graveyard, where family and community members had dug the grave.”

According to Darby, it was not until the Civil War, when the need to preserve large numbers of bodies for transport back to their families made embalming a common practice, that the commercial funeral industry was born.

When a person has died in New Hampshire, RSA 290:1-b requires the death to be “pronounced,” meaning that the date, time and fact of bodily death must be recognized by a medical authority. At minimum, this means a registered nurse licensed by the state, pursuant to RSA 326-B, although the pronouncement may also be made by an advanced practice registered nurse (APRN, a nurse with a graduate degree, per RSA 326-B:18) or a physician. There is no requirement that this pronouncement happen in a hospital, nursing home or other facility, unless that is where the death occurred.

RSA 290:17 governs the custody and control of remains. Section 17, Paragraph II vests custody and control in the next of kin by default, although a decedent may designate an agent to take custody and control “in a written and signed document, which could include the decedent’s Last Will and Testament.

After pronouncement, a written record of the death must be transmitted to the New Hampshire Division of Vital Records Administration, within the NH Office of the Secretary of State. This record can be completed and filed by a number of persons, per RSA 5-C:62, but must be filed with the division within 36 hours after the death and “prior to final disposition or entombment.”

Per RSA 290:1 and 290:2, certification of the facts alleged in the record may be “by hand or other approved electronic process.” As a practical matter, one may need the help of a licensed funeral director or town clerk who has access to the non-public Vital Records electronic filing system. Filing with the help of the town clerk is free, while a funeral director will charge for his or her services.

RSA 5-C requires various items of personal information about the decedent to be given in the record of death, and all of the non-medical information can be provided by the next-of-kin or designated agent. Only an APRN or physician may certify the cause of death, per RSA C-5:62, IV (see also RSA 5-C:64). The original paper record of death must be filed with the Division within 10 days of the death, if the original filing was electronic.

RSA 290:11 prohibits removal of a body from the place of death, except by the person vested with custody and control, or his or her designee. Once the certified record of death has been filed with the Division of Vital Records and the custodian of the body has provided the name, address, and the date and hour of removal to the institution where the death occurred, RSA 290:2-a allows the body to be removed from an institution or private home where the decedent was being attended by a home healthcare provider licensed under RSA 151, for burial or other disposition (RSA 290:1-b allows removal from a private home where no such licensed provider was attending).

Disposition of the body requires a permit from the state through a process that has been delegated to city and town clerks in RSA 5:C-67 through 69. Willfully and knowingly transporting, burying or otherwise disposing of a body without such a permit is a misdemeanor, per RSA 5-C:14, III. A burial permit form is generated when the death certificate is filed electronically by the town clerk and enables the authorized custodian to transport the body home, to a church or other space, and to the crematory or cemetery. The crematory or cemetery authority will sign the permit form, which must then be filed with the town within six days of interment (see RSA 290:6 and 5-C:69).

If the body is to be cremated, the crematory will contact the medical examiner, who must release the body per RSA 611-B:11 (see also RSA 325-A:18). In addition to cremations (or burials-at-sea, donations, or removal of bodies across state lines) in anticipated deaths, which destroy or remove evidence of the manner of death, any death that is not anticipated is considered a “Medico-Legal death” under RSA 611-B:11 and must be investigated by the Office of the Chief Medical Examiner. Even in unanticipated deaths, however, the body is released back to the family, if they have custody and control pursuant to RSA 290:17, after the medical examiner’s work is complete.

If the decedent wished to be buried on private land, rules are provided by RSA 289, which requires compliance with local zoning ordinances if the burial ground is not “established” (presumably, as of the date of passage of that statute). If the local ordinance is silent, the statute sets forth minimal setbacks: “[n]o cemetery shall be laid out within 100 feet of any dwelling house, schoolhouse or school lot, store or other place of business without the consent of the owner of the same, nor within 50 feet of a known source of water or the right of way of any classification of state highway.”

RSA 289:5 imposes a recordkeeping requirement on the owner of private burial sites: “The owner of the land containing [a private] burial site... shall keep a record of every burial showing the date of burial and name of the person buried,” and must supply that information “to the cemetery trustees who will maintain the municipal records of such sites.” Moreover, “[a] copy of such record, duly certified, shall be furnished to any person on demand and payment of a fee established in compliance with RSA 91-A:4,” and RSA 289:3, II states that “[t]he location of the burial site shall be recorded in the deed to the property upon transfer of the property to another person.

Conveyancing lawyers should consider an existing or prospective private burial site as they would any other land-use encumbrance, such as an access easement, and should also counsel their clients on the possible effect on re-sale value. The standard owner’s affidavit required by title insurance companies requires disclosure of known burial sites, and the setbacks of RSA 289 and local zoning codes may overlap with other building or lot setbacks to constrain future use of the property.

Darby says: “there is an active home funeral movement that is working to educate and advocate for the restoration of the right of every American to care for their loved ones after death, including preparing the body, planning and carrying out the funeral, and burying the body.” She recommends the educational materials provided by advocacy organizations such as New Hampshire Funeral Resource, Education and Advocacy, the National Home Funeral Alliance and the Green Burial Council, as well as independent home funeral guides and death midwives like herself, for families and individuals who wish to explore end-of-life options.

Donald H. Sienkiewicz

Donald H. Sienkiewicz practices estate planning and probate law in Milford. He can be reached for comment and correction by email or at (603) 554-8464. Special thanks to Deana Darby, a home funeral consultant and death midwife in Wilton. She can be reached by email or at (603) 809-3396.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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