Burial and Cremation Laws in Texas

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 Texas.

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

How do I get a death certificate in Texas?

Filing the death certificate. In Texas, a death certificate must be filed with the local registrar within 10 days of the death. (Texas Health & Safety Code § 193.003.) 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.

Getting copies of the death certificate. You might want copies of a death certificate for your own records or, if you are in charge of wrapping up the deceased person's affairs, to carry out your job. You will need 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 (often the funeral home) 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 10 certified copies.

If you need to order more copies later, you can order it online from the Texas Department of State Health Services. You can also download a mail-in order form or find information for ordering death certificates in-person at your local office. In Texas, you must provide a copy of your government-issued photo ID or other acceptable identification at the time you order the death certificates. The first certified copy of a Texas death certificate costs $20; additional copies ordered at the same time cost $3 each.

Who can order a death certificate in Texas?

In Texas, if the death occurred within the past 25 years, you can obtain a certified copy of a death certificate only if:

• you're an immediate family member of the person whose name is on the certificate, or
• you can provide legal documentation—for example, an insurance policy naming you as the beneficiary—showing that you have a direct, tangible interest in the death certificate.

For more information, see the Texas DSHS website.

In Texas, who completes the death certificate?

Usually, the funeral director completes the death certificate with input from the family (about personal information) and medical professionals (about the circumstances of the death).

The physician who attended to the deceased person for the condition or illness that resulted in the death completes a medical certification. If the death was not due to natural causes, it must be reported to the proper authority for investigation and completion of the medical certification. The medical certification must be provided to the funeral director within five days. If the cause of death can't be determined within five days, the physician or medical examiner must give the reason for delay to the funeral director. The body can't be disposed of until the physician or medical examiner gives approval. (Texas Health & Safety Code § 193.005.)

Is embalming required in Texas?

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 rarely necessary; refrigeration serves the same purpose.

In Texas, embalming is not required. Texas does, however, require a body to be refrigerated, embalmed, or placed in an approved, sealed container if final disposition (burial or cremation) will not occur within 24 hours. (25 Texas Administrative Code § 181.4.)

In Texas, 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 have rules requiring 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 Texas, do I have to buy a casket from the funeral home?

No. In fact, federal law requires funeral homes to accept caskets that you purchase from another source, such as an online retailer. You may also build your own casket, if you prefer.

Where can bodies be buried in Texas?

Most bodies are buried in established cemeteries, but burial on private property may be possible in Texas. Before conducting a home burial or establishing a family cemetery, you'll have to follow certain rules, such as these:

• The location of burial must be a certain distance away from the closest city or municipality. The minimum distance is determined by the population of the city. (Texas Health & Safety Code § 711.008.)
• You'll have to bury the body at a minimum depth: 1.5 feet below ground if the casket or container is made of impenetrable material, or two feet below ground otherwise. (Texas Health & Safety Code § 714.001.)
• If you have a survey of your property, you can draw a map on the survey that shows the location of the family cemetery and then file the map with the county clerk alongside your property deed. Otherwise, you'll need to have your property surveyed as well. (Texas Health & Safety Code § 711.034.)

Also check with the county or town clerk for any local zoning laws you must follow. The Texas Cemeteries and Crematories Association offers a helpful fact sheet about family cemeteries. Be sure to read it before taking steps to create a private burial ground.

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

In Texas, there are few limits on 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 them, Texas law allows you to do so over "uninhabited public land, over a public waterway or sea, or on the private property of a consenting owner." Unless the container is biodegradable, you must remove the ashes from the container before scattering. (Texas Health & Safety Code §716.304.) 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. As noted above, if you want to scatter ashes on someone else's private land, state law requires you 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. 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, campgrounds, 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. Like state law, federal rules require that nonbiodegradable containers be disposed of 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 need a permit from the state agency that manages the waterway.

For more information, including contact information for the EPA representative in Texas, see the EPA's page on Burial at Sea.

Scattering ashes by air. Federal aviation laws 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 Texas, see Texas 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.