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 South Dakota.
In all states, it is legal to have your loved one’s body at home after they die. South Dakota does not require you to involve a licensed funeral director in making or carrying out final arrangements. (See, for example, South Dakota Laws § 34-25-25 (2018)), which permits the “funeral director, or person acting as such” to file the death certificate.)
South Dakota 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:
How to appoint a representative. To name someone to carry out your final arrangements, you should write down what you want in a signed, dated document.
Naming your representative in a durable power of attorney for health care. One smart way to appoint a representative is to make a power of attorney naming a health care agent. In your document, you can give your agent explicit power to carry out your final arrangements. (You must make this authority clear in the power of attorney document; otherwise your agent’s decision-making power ends when you die.) This saves the trouble of making separate documents for final arrangements and health care decisions.
For information about making a power of attorney, see Living Wills & Medical Powers of Attorney.
To make a South Dakota health care power of attorney that appoints your health care agent to carry out your final plans, you can use Nolo’s Quicken WillMaker & Trust software.
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. South Dakota regulations require a body to be embalmed or refrigerated only if final disposition will not occur within 24 hours. (Administrative Rules of South Dakota § 20:45:02:07 (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. South Dakota law requires you to file the death certificate with the department of health within five days after the death. (South Dakota Laws § 34-25-25 (2018).)
South Dakota now uses an electronic death registration system, but you can still file a paper death certificate. You can obtain a blank “Fact of Death Worksheet” and instructions from the local registrar of vital records.
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.
If the death certificate has been electronically filed, a permit for disposition will be electronically generated. If you have submitted a paper Fact of Death Worksheet (see above), the local registrar will issue the disposition permit. This permit will allow you to move the body to bury it or have it cremated. (South Dakota Laws § 34-25-24 (2018).)
There are no state laws in South Dakota prohibiting home burial, but local governments may have rules governing private burials. Before burying a body on private property or establishing a family cemetery, you should check with the county or town clerk for any zoning laws you must follow. You can most likely hold a home burial if you live in a rural area.
South Dakota law requires anyone who conducts a burial to keep a record of it. Furthermore, each gravesite must be mapped and recorded with the local registrar of vital records. (South Dakota Laws § 34-27-8 (2018).)
Some crematories require 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. In South Dakota, the disposition permit also authorizes cremation. (South Dakota Laws § 34-25-24 (2018).)
There is a required waiting period of 24 hours before cremation may occur, unless the doctor or coroner grants a waiver. (South Dakota Laws § 34-26A-13 (2018).)
South Dakota law permits you to place cremated remains in a crypt, niche, grave, or scatter them in dedicated scattering garden of a cemetery. If you plan to scatter ashes in any other location, the following restrictions apply:
For more information about cremation, including additional details on scattering ashes, see Burial and Cremation Laws in South Dakota.
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.