Burial and Cremation Laws in New Mexico

Here are some answers to common questions about post-death matters in New Mexico.

Updated by , Attorney · University of Arkansas School of Law

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.

How do I get a death certificate in New Mexico?

In New Mexico, a death certificate must be filed with the local registrar within five days after the death and before the body is buried or cremated. (N.M. Stat. § 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. 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 after some time has passed, visit the website of the New Mexico Department of Health. From there, you'll find options to order death certificates online, by phone, by mail, or in person. 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; additional fees apply for online and phone orders.

Who can order a death certificate in New Mexico?

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 N.M. Stat. § 24-14-27 and the New Mexico Death Record Application Form.

Who completes the death certificate in New Mexico?

In New Mexico, funeral director or person acting in that capacity prepares and files the death certificate within five days of the death. To complete the death certificate, the funeral director gathers personal information from the next of kin and also sends the medical certification portion of the death certificate (including cause of death) to a medical professional for completion.

Specifically, the attending physician or nurse practitioner who was in charge of the patient's care for the illness or condition that led to death completes the medical certification within 48 hours of death. If the attending physician approves, the doctor who performs the autopsy or another qualified person to whom the attending physician delegates the task can complete the death certificate if that person has access to the patient's medical history, views the deceased at the time of death or after death, and the death is due to natural causes. If death is due to other than natural causes or it has been more than 10 days since a physician last treated the patient, the case is referred to the state medical investigator to complete the death certificate.

(N.M. Stat. § 24-14-20.)

Is embalming required in New Mexico?

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 either embalmed or refrigerated if final disposition has not occurred within 24 hours. Embalming is not required in any other circumstances. (N.M. Stat. § 61-32-20.)

In New Mexico, 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. 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.

In New Mexico, 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. You must have a burial-transit permit if someone other than a funeral home disposes of the body. (N.M. Stat. § 24-14-23.) 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?

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. Generally, use common sense and refrain from scattering ashes in places where they would be obvious to others. You must obtain a permit before cremating a body. (N.M. Stat. § 24-14-23.)

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, developed areas, campsites, 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, including contact information for the EPA representative in New Mexico, see the EPA's page on Burial at Sea.

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.

Other 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 New Mexico, see New Mexico 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.

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