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 New Mexico.
In all states, it is legal to have your loved one’s body at home after they die. New Mexico does not require you to involve a licensed funeral director in making or carrying out final arrangements. (See, for example, New Mexico Statutes § 24-14-20 (2018), which requires “the funeral service practitioner or person acting as a funeral service practitioner” to file the death certificate.)
New Mexico law determines who has the right to make final decisions about a person’s body and funeral services.
If you make a will that leaves funeral instructions. As long as you write down what you want in your will, the personal representative you name has the authority to carry out your plans. (New Mexico Statutes § 45-3-701 (2018).) Unfortunately, a will is generally not the best place to address these matters. If you’re worried that your closest family members will ﬁght over your final arrangements, you may want to see a qualiﬁed estate planning lawyer to minimize conﬂict and ensure that your wishes are respected.
If you do not leave written instructions. If you don’t write down your plans, decision-making authority goes to the following people, in order:
(New Mexico Statutes § 24-12A-2 (2018).)
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 almost never required. In New Mexico, a body must be embalmed or refrigerated only if final disposition will not occur within 24 hours after death. (New Mexico Statutes § 61-32-20 (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. New Mexico law requires you to file the death certificate with the local registrar of vital records within five days after the death and before final disposition. (New Mexico Statutes § 24-14-20 (2018).)
You must present the death certificate to the deceased person’s doctor, nurse practitioner, or other approved medical provider, who will fill in the medical portion of the death certificate, which contains such information as date, time, and cause of death. The medical provider will then return it to you within 48 hours for completion and filing. (New Mexico Statutes § 24-14-20 (2018).)
New Mexico now uses an electronic death registration system, but you can still use a paper death certificate. You can obtain a blank death certificate and guidance from the vital records unit of the New Mexico Department of Health.
You will need certified copies of the death certificate to carry out certain tasks after the death, such as arranging for the disposition of the body and transferring the deceased person’s property to inheritors. 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.
No burial-transit permit is required if burial or cremation will occur in New Mexico under the supervision of a funeral director or direct disposer -- that is, a person licensed to dispose of the body as quickly as possible, without funeral services or embalming. (See New Mexico Statute § 24-14-23 (2018).)
In all other cases, the local registrar must issue a burial-transit permit before you move the body for final disposition. (New Mexico Statutes § 24-14-23 (2018).) For example, if someone dies outside the home, this authorization would be necessary to bring the body home for care. Or, if someone dies at home, permission is necessary to move the body to a location away from home for burial or cremation.
Burial on private property may be possible in New Mexico. Before burying a body on private land or establishing a family cemetery, you should check with the county clerk for any zoning regulations or other rules you must follow.
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. The medical investigator must issue a permit before a body can be cremated, but there are no laws in New Mexico restricting the disposition of the ashes. (New Mexico Statutes § 24-14-23 (2018).)
For more information about cremation, including information on scattering ashes, see Burial and Cremation Laws in New Mexico.
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.