Guide Massachusetts law about burial, cremation, and funerals

A compilation of laws, regulations, cases and web sources on burial, cremation, and funeral law

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Issues to Consider in Preparing for Disposition of Decedents, Mass. Dept. of Public Health, Division of Community Sanitation
Includes detailed information on death certificates, transportation, preparing the body, cremation, burial, green burial, burial at sea, and more, with links to applicable laws and regulations.

Massachusetts laws

MGL c.114 
Cemeteries and Burials. The state's primary cemetery, burial and cremation law

MGL c.7, s.38A 
Skeletal remains; preservation; excavation; analysis. Handling possible American Indian remains

MGL c.7C, s.43  
Procedure after notice of evaluation to determine presence of possible American Indian remains

MGL c.9, s.26A 
State archeologist; duties; reservation of lands from sale; cooperation of governmental agencies

MGL c.9, s.27C 
Requirements to notify state archeologist if remains are found during public construction project

MGL c.38, § 6 
Unmarked human skeletal remains; notice to office of chief medical examiner; inquiry; notification of commission on Indian affairs

MGL c.46, § 9 
Death certificates; issuance; contents; declaration of death by nurse, nurse practitioner or physician's assistant. Describes the procedure for issuance of death certificates.

MGL c.114, s.43M 
Cremation Remains. Authorizes funeral establishments to dispose of cremated remains that have not been claimed within 12 months of cremation. The funeral establishment must keep permanent records.

MGL c.117A, s.9
Final disposition of deceased persons; recovery of expenses from deceased's kindred. In some circumstances, the state will pay up to $1100 for the burial expenses of those who die without any money, but "may recover this expense from any legally liable family members."

MGL c.190B, s.3-701 
Prior to appointment, a person named executor in a will may carry out written instructions of the decedent relating to the decedent's body, funeral and burial arrangements

MGL. c. 272 s. 42 
Disturbance of Funerals: Whoever wilfully interrupts or by fast driving or otherwise in any way disturbs a funeral assembly or procession shall be punished as provided in section forty

MGL c. 272 s.40 
Disturbance of Schools or Assemblies: Penalty for disturbing an assembly (funeral)

Massachusetts regulations

106 CMR 705.700-705.710  Funeral and Final Disposition Expenses

239 CMR Rules and Regulations Governing Funeral Directors and Embalmers

505 CMR 1  Disclosure of Autopsy Reports

505 CMR 2  Release of Unclaimed or Unidentified Bodies

505 CMR 4  Cremation Fees

Federal regulations

16 CFR 453 Funeral Industry Practices. The "funeral rule"

40 CFR 229.1 Burial at Sea

Selected case law

Brown v. Bayview Crematory, LLC , 79 Mass. App. Ct. 337 (2011)
Jury could find that "plaintiffs suffered injury due to mental distress occasioned by the defendant's handling of the remains of the plaintiffs' mother...even where the jury found that the plaintiffs did not suffer sufficient physical manifestation or objective symptoms to recover for negligently inflicted emotional distress."

Burney v. Childrens Hospital , 169 Mass. 57 (1897)
Discusses the right to possession of a body for the purpose of burial

Kelly v. Brigham & Women's Hospital, 51 Mass. App. Ct. 297 (2001)
Discusses the elements of a wrongful autopsy claim

LaCava v. Lucander , 58 Mass. App. Ct. 527 (2003)
The right to be buried in a cemetery of one's choosing is not a fundamental right for purposes of equal protection

LeBlanc v. Commonwealth , 457 Mass. 94 (2010)
Where there was understandable confusion about whether a body released to parents was the correct body, but in fact there was no error, the Office of the Chief Medical Examiner had no obligation to tell the family that the autopsy report had been corrected and that the body was, in fact, that of their son

O'Dea v. Mitchell , 350 Mass. 163 (1966)
The plaintiffs' standing for unlawful burial rests on the statement that they are "next of kin" to the decedent, and therefore have the right to possession of the decedent's body. That right vests, however, in the next of kin only when there is no surviving spouse or no contrary provision by the decedent concerning the disposition of his remains.

Silva v. Attleboro , 454 Mass. 165 (2009)
A Superior Court judge did not err in holding that monetary charges imposed by certain municipalities for the issuance of burial permits were valid regulatory fees rather than improper taxes, where the charges were reasonably proportional to the amounts expended by the local boards of health in administering the permit process, and were charged in exchange for a particular governmental service benefiting the party paying the charge, that is, a well-regulated industry for the disposal of human remains.

Web sources

General Information

  • Burying Mass Murderers: The Problem of Tamerlan Tsarnaev, Huffington Post, May 2013
    Excellent overview of Mass. burial laws, and the challenges facing difficult situations. "If the family of Tamerlan Tsarnaev rejects cremation as an option, then it will likely find that Massachusetts law will provide little assistance in securing a burial place for him."
  • Caring for Your Own Dead: Guidelines for Burial or Cremation without a Funeral Director, Funeral Consumers Alliance of Eastern Massachusetts
    Extremely helpful information about the process, even if you don't plan to do it yourself
  • Caring For Your Own Procedures: Highlighting required forms, upon death in MA, Funeral Consumers Alliance of Eastern Massachusetts.
  • Consumer's Guide to Planning a Funeral, Board of Registration of Embalmers and Funeral Directors
    Provides consumer guidelines for Purchasing Funeral Arrangements and Pre-Paid ("Pre-Need") Funeral Arrangements
  • Death Registration Fact Book, Mass. Registry of Vital Records and Statistics, 2006
    Provides detailed instructions on preparing a death certificate, for funeral directors or others acting in that capacity.
  • Frequently Asked Questions About Inquests, Boston Herald
    Attribution is unclear, but we believe this was written by the District Court Dept. Explains how the inquest process works.
  • Shopping for Funeral Services, Federal Trade Commission
  • Detailed guide on issues confronting consumers. Includes funeral planning, costs, a form to use in comparing costs, and consumer rights under the "funeral rule."
  • Veterans' Guide to Benefits: Burial Benefits, Mass. Secretary of State
    Explains eligibility for burial in state and federal veterans' cemeteries and the application procedure.
  • VIP Electronic Death Registration System (EDRS).  Mass. Registry of Vital Records and Statistics
    All deaths occurring on September 1, 2014 onward must be registered through EDRS
  • What to Do When Human Burials Are Accidentally Uncovered: Know How #4, Mass. Historical Commission
    What you should do if you uncover bones, and the role of the state archaeologist

Burial at Sea

  • Burial at Sea, Environmental Protection Agency
    Contains guidance in how to conduct a burial at sea and reporting requirements.
  • A Final Resting Place at Sea: As Cremations Rise, Ocean Burials Also Gain, Boston Globe, January 20, 2011
    Explains the increasing number of burials at sea, and some options for those considering it

Burying the Poor

Green Burial

  • Going Green, Boston Globe, March 1, 2009.
    In a profile of one company making green caskets, this article describes green burial options at some length.
  • Massachusetts Cemeteries that Allow Green Burial. Green Burial Massachusetts.
    Many cities/towns require residency as a prerequisite to burial there

Consumer law, 3rd ed. (Mass. Practice Series vol. 35 - 36A), 2010 with 2016-17 supplement.  Funeral Services, section 30:40 - 30:49.

The Law of Human Remains, Tanya Marsh, Lawyers & Judges Publishing Company, Inc., 2016.

Final Rights:  Reclaiming the American Way of Death, Joshua Slocum and Lisa Carlson, Upper Access, 2011.

Last update: February 15, 2018

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