Burial & Cremation Laws in Delaware

Everything you need to know about burial, cremation, and other post-death matters in Delaware.

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 Delaware.

How do I get a death certificate in Delaware?

In Delaware, a death must be registered with the local or state vital records office within three days and before the body is buried or cremated. (16 Delaware Code § 3123.) 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.

When an official death investigation is not required, the attending physician, registered nurse (RN), or advanced practice registered nurse (APRN) must complete the medical certification on the death certificate and return it to the funeral director within 48 hours after death. If the cause of death cannot be determined within 48 hours, the attending physician or medical examiner files a pending death certificate and orders a toxicology study. The Division of Forensic Science assumes custody of the body and reviews the reports and studies. It completes a revised death certificate and sends it to the funeral director.

If an official death investigation is required by law, the medical examiner assumes custody of the body, determines the cause of death, completes the death certificate, and files it with the Office of Vital Statistics.

You may need to obtain copies of a death certificate for a number of reasons. You might simply want a copy for your personal records or, if you are in charge of wrapping up the deceased person’s affairs, you may require 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 of a death certificate after the time of death has passed, visit the website of the Delaware Division of Public Health. From the DPH website, you can download a mail-in order form or order death certificates online.

You must provide a copy of a valid photo ID at the time you order the death certificate. A certified copy of a Delaware death certificate costs $25.

Who can order a death certificate in Delaware?

In Delaware, the following people or agencies may order a certified copy of a death certificate:

  • the deceased person’s spouse
  • the deceased person’s parent or child
  • the deceased person’s legal guardian
  • an authorized representative of the deceased person or of one of the people named above, or
  • any other person who can prove that the certificate is needed to determine or protect their personal property rights or for genealogical purposes.

You may have to provide additional information to obtain the death certificate, such as your marriage license, birth certificate, or court order.

(16 Delaware Code § 3110.)

Is embalming required in Delaware?

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

In Delaware, if final disposition will not occur within 24 hours, a body must be embalmed, placed in a hermetically sealed casket, or refrigerated. (16 Delaware Health and Social Services Administrative Code, Part 4204 § 3.0)

In Delaware, 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 a simple $500 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 in most instances. However, you should check with the cemetery; it may have rules requiring a certain type of container. Also, if you are shipping the body and it will not reach its destination within 24 hours of death, you must use a metal and permanently sealed casket or outside case. The same rule applies if the person died from an infectious disease. (16 Delaware Health and Social Services Administrative Code, Part 4204 §§ 6.0 and 7.0)

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.

In Delaware, do I have to buy a casket from the funeral home?

No. While Delaware law seems to require a casket seller to possess a funeral director’s license (see 24 Delaware Code § § 3101 and 3106), federal law requires funeral homes to accept caskets that consumers have purchased from another source, such as an online retailer. You may also build your own casket, if you prefer.

Where can bodies be buried in Delaware?

Most bodies are buried in established cemeteries, but there are no state laws in Delaware that prohibit burial on private property. Local governments may have rules governing private burials. Before burying a body on private land or establishing a family cemetery, you should check county and city zoning ordinances and obtain burial permit. (16 Delaware Health and Social Services Administrative Code, Part 4204 § 2.0). All graves must be at least 18 inches deep from the distance between the highest edge of the coffin to the surface. For people who had an infectious disease, the grave must be at least 79 inches deep.

Where can we store or scatter ashes after cremation in Delaware?

Delaware state law says that cremated remains may be “disposed of in such a way as is desired by the person receiving them.” (16 Delaware Code § 3161.) 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 simply proceed as they wish, 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 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, including the contact information for the EPA representative in Delaware, 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, visit the website of the Federal Trade Commission.

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

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

Get It Together, by Melanie Cullen (Nolo) helps you gather and organize the essential details of your life for yourself and your family.

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