Burial & Cremation Laws 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?
• Who can order a death certificate in Delaware?
• In Delaware, who completes the death certificate?
• Is embalming required in Delaware?
• In Delaware, is a casket necessary for burial or cremation?
• In Delaware, do I have to buy a casket from the funeral home?
• Where can bodies be buried in Delaware?
• Where can we store or scatter ashes after cremation in Delaware?

How do I get a death certificate in Delaware?

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. The easiest way to get copies of a death certificate is to ask this person or organization to order them for you at the time of the death.

If you're the executor of the estate (in charge of wrapping up the deceased person's affairs), you should ask for at least 10 certified copies. You'll 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.

If you need to order copies of a death certificate after some time of death has passed, visit the website of the Delaware Division of Public Health. From there, you'll find information on ordering death certificates in person, by mail, or 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, and extra fees apply for online ordering.

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 any of the people named above, or
• any other person who can prove that the certificate is needed to determine or protect their personal or property rights or for genealogical purposes.

(16 Del. Code § 3110.) You may have to provide additional documentation to obtain the death certificate, such as proof of your relationship (for example, with a marriage license or birth certificate) or a court order.

In Delaware, who completes the death certificate?

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 Del. Code § 3123.) The funeral director obtains personal data about the deceased person from the next of kin and then sends the data to the medical professional (usually an attending physician, registered nurse, or advanced practice registered nurse) to fill out the medical certification with the cause of death. This medical professional returns the medical certification to the funeral within 48 hours of the death.

If the cause of death cannot be determined within 48 hours, the medical professional files a pending death certificate and orders a toxicology study. 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.

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; other treatments can serve the same purpose.

In Delaware, if final disposition (burial or cremation) will not occur within 24 hours after death, a body must be either embalmed or placed in a hermetically sealed casket that will not be opened after the 24-hour period. If medical or legal investigation requires a longer period, a special permit can be issued and the body can be refrigerated. (16 Del. Admin. Code § 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 average cost of a casket is more than $2,000, and the price can run into the $10,000-$20,000 range for more elaborate designs and expensive materials. Whether due to the cost or for other reasons, some people prefer to forgo a casket altogether.

Burial. In most instances, no law requires a casket for burial. However, you should check with the cemetery; it may have private rules requiring a certain type of container. Additionally, if you are shipping the body and it will not reach its destination within 24 hours of death, you must use a metal or metal-lined casket that is permanently sealed. (16 Del. Admin. Code §4204-7.0.) If the person died from certain infectious diseases, additional rules for the preparation, transport, and disposal of the body apply, including a metal or metal-lined casket. (16 Del. Admin. Code §§ 4204-6.0.)

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. In fact, 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. You must obtain a burial permit, and all graves must be at least 18 inches deep, measured from the distance between the highest edge of the coffin to the surface. For people who had certain infectious diseases, the grave must be at least 79 inches deep. (16 Del. Admin. Code § 4204-24.0).

Local governments may have their own rules governing private burials. Before burying a body on private land or establishing a family cemetery, you should also check county and city zoning ordinances.

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 Del. 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. Generally, 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, campsites, developed areas, 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 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.

More Resources

To learn about the federal rule on funerals, which protects consumers in all states, visit the FTC's Funeral Rule page.

For more information about funeral laws in Delaware, see Delaware Home Funeral Laws.

To find out more about funerals and other final arrangements, see Nolo's section on Getting Your Affairs in Order.

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