If you are interested in holding a home funeral for a loved one who has died, you’ll need to be aware of the laws that apply. Here is an overview of the rules that govern home funerals in Delaware.
In all states, it is legal to have your loved one’s body at home after they die. Delaware law does not require you to involve a licensed funeral director in making or carrying out final arrangements. (See, for example, 16 Delaware Code §§ 3151 and 3152 (2018), which allow the “funeral director or person acting as such” to obtain a burial-transit permit.)
Delaware law determines who has the right to make final decisions about a person’s body and funeral services. This right and responsibility goes to the following people, in order:
(Delaware Code, Title 12, Ch. 2, § 264 (2018).)
Making a declaration form. To make a valid document appointing someone to carry out your final wishes, you must write down what you want, then sign and date your document. You may sign your declaration in front of a notary public, but it’s not legally necessary to do so. (Delaware Code, Title 12, Ch. 2, § 266. (2018))
You can find Delaware’s official “Declaration of Disposition of Last Remains” form in Delaware Code, Title 12, Ch.2, § 265 (2018). You can also make up your own form, as long as the language you use is substantially the same as the statutory form.
For more information about making an advance directive in Delaware, see Living Wills & Medical Powers of Attorney.
Note that, if you are in the military, you may name the person who will carry out your final wishes in the Record of Emergency Data provided by the Department of Defense.
Who pays for your funeral arrangements? You can either pay for your plans before you die, or you can set aside money for your survivors to use for this purpose. If you don’t do either of these things, and there’s not enough money in your estate to pay for funeral goods and services, your survivors must cover the costs.
Embalming is usually not required. In Delaware, a body must be embalmed, refrigerated, or placed in a hermetically sealed casket only if disposition does not occur within 24 hours. (See 16 Delaware Administrative Code § 4204-3.0 (2018).) If the body will be transported by “common carrier” -- such as an airplane or train -- it must reach its destination within 24 hours and be contained in a metal or metal-lined and permanently-sealed casket. Otherwise, the body must be embalmed. (16 Delaware Administrative Code § 4204-7.0 (2018).)
Refrigeration or dry ice can usually preserve a body for a short time. There are resources available to help you learn to prepare a body at home for burial or cremation. The website of the National Home Funeral Alliance is a good place to start.
If the person died of a contagious disease, you should consult a doctor.
If you will not be using a funeral director to carry out final arrangements, you must complete and file the death certificate yourself. Delaware law requires you to file the death certificate with the office of vital statistics within three days of the death and before you dispose of the remains. (See 16 Delaware Code § 3123 (2018).)
The deceased person’s doctor, the chief medical officer of the institution where the person died, or another approved medical provider must complete the medical portion of the death certificate within 48 hours. (16 Delaware Code § 3123 (2018).)
Delaware now uses an electronic death registration system, but you can still obtain paper death certificates from the attending physician, a hospital, or the medical examiner. This person will supply the date, time, and cause of death before returning the certificate to you for completion and filing.
You will need certified copies of the death certificate to carry out certain tasks after the death, such as getting a permit to transport the body to the place of burial or cremation. You may be able to file the death certificate and get certified copies the same day. If not, you will have to make a return trip to pick up the copies. Be prepared to pay a small fee for each copy.
You must obtain a burial-transit permit before you:
You will need a certified copy of the death certificate to obtain the burial-transit permit from the office of vital statistics. For details, see 16 Delaware Code §§ 3151 and 3152, and 16 Delaware Administrative Code § 4204-8.0.
There are no laws in Delaware that prohibit home burial, but you should check local zoning rules before burying a body on private land or establishing a family cemetery. You can most likely hold a home burial if you live in a rural area.
Some crematories require that you use a funeral director to arrange cremation. If you don’t want to use a funeral director, make sure the crematory is willing to accept the body directly from the family. A medical examiner must issue a permit before a body can be cremated, but there are no laws in Delaware restricting the disposition of the ashes. (For additional details, see 16 Delaware Code § 3159 (2018).)
For more information about cremation, including information on scattering ashes, see Burial & Cremation Laws in Delaware.
Even the most staunch home funeral advocates know that learning to care for one’s own dead can be difficult, especially during a time of grief. If you need help, there are people available to coach you through the process. You can find local guides, consultants, and other resources by visiting the National Home Funeral Alliance website. The book Final Rights, by Joshua Slocum and Lisa Carlson, also offers extensive information on the subject.
For more information about final arrangements and documenting your final wishes in advance, see Nolo’s section on Getting Your Affairs in Order.