Burial and Cremation Laws in South Dakota

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.

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

How do I get a death certificate in South Dakota?

In South Dakota, a death certificate must be filed with the health department within five days of the death. (S.D. Codified Laws § 34-25-25.) 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 has passed, visit the website of the South Dakota Department of Health . From there, you'll find information about applying for death certificates in person, online, by mail, 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, and extra fees apply when ordering online or by phone.

Who can order a death certificate in South Dakota?

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

• the deceased person's spouse, children, parent, guardian, or next of kin (grandparent or sibling)
• an authorized representative of the deceased person
• someone who can show they need the death certificate to determine or protect a personal or property right.

Others may obtain non-certified, informational copies of a death certificate. These copies contain the statement, "For informational Purposes only. Not for legal proof of identification."

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

In South Dakota, who completes the death certificate?

Two separate people need to complete different portions of the death certificate. The funeral director or other person in charge of disposition of the body collects personal information about the deceased person from the next of kin and files what's known as a "fact of death record" with the South Dakota Department of Health within five days of the death. S.D. Codified Laws § 34-25-25. In addition, the attending physician, physician assistant, or certified nurse practitioner must complete, sign, and file the medical certificate (which states the cause of death), also within five days of death. S.D. Codified Laws § 34-25-18. If the death occurred without medical attendance, the person in charge of the body must notify the coroner or sheriff of the death, usually within 24 hours of the death. (Failing to do so is considered a misdemeanor in South Dakota.) The coroner then completes, signs, and files the medical certificate within five days of the date of death, unless an autopsy or investigation is ongoing. S.D. Codified Laws § 34-25-21.

Is embalming required in South Dakota?

Embalming is a process in which blood is drained from the body and replaced with fluids that delay disintegration. Though it's still a common procedure, embalming is not usually necessary; refrigeration serves the same purpose.

In South Dakota, if final disposition of the body (burial or cremation) doesn't occur within 24 hours, then either embalming or refrigeration is required. (See S.D. Admin. Code § 20:45:02:07.)

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

No. In fact, 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. Before burying a body in South Dakota, you will need to obtain a burial permit from the health department or local registrar. (See S.D. Codified Laws § 34-25-24.) In addition, 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 S.D. Codified Laws § 34-27-8.)

Local governments often also have their own rules governing private burials. Before conducting a home burial, also check with the town or county clerk and local health department for any additional rules you must follow.

Where can we store or scatter ashes after cremation in South Dakota?

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, South Dakota imposes the following restrictions:

• 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 in 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 scattering, 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.
• Cremated remains must be reduced to a particle size of one-eighth of an inch or less.

(See S.D. Codified Laws §§ 34-26A-24 and 34-26A-27.) While these laws are more stringent than in most states, some South Dakota funeral directors may 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, campsites, developed areas, 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 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 material, so 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 South Dakota, see South Dakota 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.