Burial and Cremation Laws in South Dakota

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Each state has laws affecting what happens to a body 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 answers to common questions about post-death matters in South Dakota.

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 South Dakota?
7. Where can we store or scatter ashes after cremation?
8. Learn more.

How do I get a death certificate?

You may want copies of a death certificate for your personal records or, if you are in charge of wrapping up the deceased person’s affairs, to carry out your job. You will need to submit a certified copy of the death certificate each time you claim assets or benefits that belonged to the deceased person, including life insurance proceeds, Social Security benefits, payable-on-death accounts, veterans benefits, and others.

In South Dakota, a death certificate must be filed with the health department within five days of the death. (South Dakota Laws § 34-25-25.) 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; usually this will be a funeral home, mortuary, or crematory. If you are the executor of the estate, you should ask for at least ten certified copies.

If you need to order copies of a death certificate after the time of death has passed, visit the website of the South Dakota Department of Health . From the DOH website, you can download a mail-in order form or find information about applying for death certificates in-person, online, or by phone.

To order certified copies of a death certificate, you must provide a photocopy of a government-issued photo ID or other acceptable identification. Each certified copy of a South Dakota death certificate costs $15.

Who can order a death certificate?

In South Dakota, certified copies of a death certificate may be issued only to:

  • the deceased person’s spouse, children, parents, guardian, or next of kin
  • an authorized representative of the decease person or of one of the people named above, or
  • any person who can show they need the record to determine or protect a personal or property right.

Others may obtain a non-certified, informational copy of a death certificate, confirming that the death occurred while omitting details such as the deceased person’s Social Security number and the cause of death.

For more details, see South Dakota Laws § 34-25-52 and the website of the South Dakota Department of Health.

Is embalming required?

Embalming (the process of replacing blood with fluids that delay disintegration of the body) is rarely necessary; refrigeration serves the same purpose.

In South Dakota, funeral board rules require a body to be embalmed or refrigerated if final disposition will not occur within 24 hours. (See Administrative Rules of South Dakota § 20:45:02:07.)

Is a casket necessary for burial or cremation?

A casket is often the single greatest expense incurred after a death, costing from about $500 to $20,000 or even more.

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 you buy from another source, such as an online retailer. You may also build a casket.

Where can bodies be buried in South Dakota?

Most bodies are buried in established cemeteries, but there are no state laws in South Dakota that prohibit burial on private property. Local governments may have rules governing private burials, however. Before conducting a home burial, check with the town or county clerk and local health department for any rules you must follow.

In South Dakota, any person who conducts a burial must maintain a record of it, and every burial site must be mapped and recorded in the local office of the registrar of vital records. (See South Dakota Laws § 34-27-8.)

Where can we store or scatter ashes after cremation?

If you want to scatter cremated ashes in South Dakota, you should be aware of the following state and federal rules.

South Dakota State Laws on Scattering Ashes

South Dakota law allows you to place cremated remains in a crypt, niche, grave, or scattering garden in a dedicated cemetery. If you want to release ashes in any other location, the following restrictions apply:

  • Before scattering ashes on private property, you must provide the crematory with a legal description of the property and written consent of the property owner.
  • Before scattering ashes on private property or over a public waterway, you must file a statement with the registrar of births and deaths in the county nearest the scattering location. The statement must include the deceased person’s name, the time and place of death, the location of the cremated remains, and any other information required by the registrar. The crematory is not allowed to release the ashes to you until you present a receipt showing that you have made this filing. Violation of this provision is a misdemeanor under South Dakota law.
  • When you scatter ashes on private property or over a public waterway, the ashes must be removed from their container before scattering.

For details, see South Dakota Laws §§ 34-26A-24 and 34-26A-27. While these laws are undoubtedly stringent, many South Dakota funeral directors are reported to act under a “don’t ask, don’t tell” policy.

Federal Rules on Scattering Ashes

The following guidelines apply if you want to scatter ashes on federal land or at sea.

Scattering ashes on federal land. Officially, you should request permission before scattering ashes on federal 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 more information, begin your search at the website of the National Park Service.

Scattering ashes at sea. The federal 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. Finally, 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. Federal aviation laws prohibit dropping any objects that might harm people or property. The U.S. government does not consider cremains to be hazardous materia, so 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, visit the website of the Federal Trade Commission.

For more information about funeral laws in South Dakota, see Making Funeral Arrangements in South Dakota.

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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