Burial & Cremation Laws in New Mexico

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Each state has laws about how a body is handled after death. For example, most states have unique rules about embalming, burial or cremation, scattering ashes, and how to get a death certificate. Here are some common questions about these matters in New Mexico.

1. How do I get a death certificate?
2. Who can order a death certificate?
3. Is embalming required?
4. Is a casket necessary for burial or cremation?
5. Do I have to buy a casket from the funeral home?
6. Where can bodies be buried in New Mexico?
7. Where can we store or scatter ashes after cremation?
8. Learn more.

How do I get a death certificate?

In New Mexico, a death certificate must be filed with the local registrar within five days after the death. (New Mexico Statutes § 24-14-20.) Typically, the funeral home, mortuary, cremation organization, or other person in charge of the deceased person’s remains will prepare and file the death certificate.

If you are the person in charge of wrapping up the deceased person’s affairs, you'll probably need multiple, official copies to carry out your job. You will need to submit a certified copy of the death certificate each time you claim property or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable on death accounts, veterans benefits, and many others.

The easiest way to get copies of a death certificate is to ask the person or organization that files the certificate to order them for you at the time of the death. If you are the executor of the estate, you should ask for at least ten certified copies.

If you need to order copies later, see the website of the New Mexico Department of Health. From the DOH website, you can download a mail-in order form or find a link to order death certificates online.

When ordering death certificates, you must provide a copy of a government-issued photo ID. Each certified copy of a New Mexico death certificate costs $5.

Who can order a death certificate?

In New Mexico, unless the death occurred more than 50 years ago, death certificates are available only to immediate family members or those who can prove they have a legal interest in the record. Immediate family is defined as the deceased person’s parent, sibling, child, grandchild, grandparent, or current spouse.

See New Mexico Statutes §§ 24-14-27 to -28 and the New Mexico Department of Health website.

Is embalming required?

Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Though it is still common, embalming is rarely necessary, because refrigeration serves the same purpose.

In New Mexico, a body must be embalmed or refrigerated if final disposition has not occurred within 24 hours. Embalming is not required in any other circumstances. (New Mexico Statutes § 61-32-20.)

Is a casket necessary for burial or cremation?

A casket is often the single greatest expense incurred after a death. The cost of a casket can range from $500 for a simple box to $20,000 or more for an elaborate design. Some people prefer to forgo a casket altogether.

Burial. No law requires a casket for burial. However, you should check with the cemetery; it may require a certain type of container.

Cremation. No law requires a casket for cremation. On the contrary, federal law requires a funeral home or crematory to inform you that you may use an alternative container, and to make such containers available to you. An alternative container may be made of unfinished wood, pressed wood, fiberboard, or cardboard.

Do I have to buy a casket from the funeral home?

No. Federal law requires funeral homes to accept caskets that consumers have purchased from another source, such as an online retailer. You may also build a casket yourself.

Where can bodies be buried in New Mexico?

Most bodies are buried in established cemeteries, but burial on private property may be possible in rural areas of the state. Before conducting a home burial or establishing a family cemetery, check with the county clerk for local zoning regulations or other rules you must follow. If you bury a body on private land, you should draw a map of the property showing the burial ground and file it with the property deed, so the location will be clear to others in the future.

Where can we store or scatter ashes after cremation?

In New Mexico, there are no state laws controlling where you may keep or scatter ashes. Ashes may be stored in a crypt, niche, grave, or container at home. If you wish to scatter ashes, you have many options. Cremation renders ashes harmless, so there is no public health risk involved in scattering ashes. Use common sense and refrain from scattering ashes in places where they would be obvious to others.

Scattering ashes in an established scattering garden. Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.

Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else’s private land, it’s wise to get permission from the landowner.

Scattering ashes on public land. You may wish to check both city and county regulations and zoning rules before scattering ashes on local public land, such as in a city park. However, many people proceed without doing so, letting their best judgment be their guide.

Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For example, White Sands National Monument in New Mexico allows scattering by permit and provides detailed information on its National Park Service web page.

Scattering ashes at sea. Federal law, the Clean Water Act, requires that cremated remains be scattered at least three nautical miles from land. If the container will not easily decompose, you must dispose of it separately. The EPA does not permit scattering at beaches or in wading pools by the sea. You must notify the EPA within 30 days of scattering ashes at sea.

The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway.

For more information, see Burial of Human Remains at Sea on the EPA website.

Scattering ashes by air. While there are no state laws on the matter, federal aviation laws do prohibit dropping any objects that might cause harm to people or property. The U.S. government does not consider cremains to be hazardous material; all should be well so long as you remove the ashes from their container before scattering.

Learn more

To learn about the federal Funeral Rule, which protects consumers in all states, go to the website of the Federal Trade Commission.

To search and read the New Mexico Statutes, visit the website of the New Mexico Compilation Commission.

For more information about funeral laws in New Mexico, see Making Funeral Arrangements in New Mexico.

To find out more about funerals and other final arrangements, see the Getting Your Affairs in Order section of Nolo.com.

by: , J.D.

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