A Guide to Understanding the Laws on Cremation in California

General Information on Cremation Laws

Cremation regulations in California are governed at the state level by the Cemetery and Funeral Bureau (Cemetery and Funeral Bureau refers to the bureau as the "Bureau"). While the funeral director in the county where the decedent is cremated is usually responsible for obtaining the necessary cremation permits, it is imperative that you understand the basic framework of California’s regulations on cremations. The Bureau has published an informational pamphlet entitled "Cremation in California" that covers the following overview:
"Who Regulates Cremation in California? All cremations in California must be done by a cemetery authority, crematory authority, or combination cemetery and crematory authority that employs a crematory manager. A crematory authority also is called a "crematory." All cemeteries, crematories and cemetery and crematory combinations are licensed and regulated by the Cemetery and Funeral Bureau, Department of Consumer Affairs, State of California.
Who Is In Charge of Regulating CREMATIONS After A Person Dies? California’s cremation regulations are contained in Health and Safety Code sections 7100 et seq. The Bureau’s regulations also contain conscience clauses which enable a crematory authority to refuse to cremate certain remains if the request conflicts with the authority’s religious beliefs. The Bureau’s rules also require the crematory to notify the requesting person of the constitutional right to free exercise of religion and provide the requester with the contact information for a person who may be able to assist in meeting the requester’s religious beliefs, moral beliefs, or conscientious objection. (Health and Safety Code section 7102.)
What Does the Law State about the Cremation Container and Plastic Bags? Cremating non-burnable containers or materials causes them to release fumes and toxins contaminated with metal , chemicals, and acids released from the burning of organic matter (called "bottom ash"). These toxins end up in the atmosphere and are harmful to your health and the environment. To avoid future enforcement action, it is important that crematories take steps to ensure that only acceptable materials are placed in the cremation container.
Materials that are not acceptable: Pillows and bedding Foam insulation or packing Mattresses Styrofoam Sound speakers Toys and stuffed animals Plastics and garbage Clothing with buttons Clothing with plastic zippers FAMU™ (include items manufactured from materials that do not conform to federal and state flammability requirements for infant and children’s products (CFR section 1610-1611, Title 16). Items include items such as baby crib bumpers, baby crib mattress pads, eight, bedding pads, stuffed toy baby toys, bibs, bib mats, changing table pads, clothing with drawstrings, baby cribs, infant or toddler beds, cradles, port-a cribs, or items that are manufactured from a material that includes memory foam.
Material which may be acceptable: Bags or containers that contain less than 1% polyethylene Shaped products with less than 1% polyethylene Polystyrene (PS) which may be okay Polyvinyl chloride (PCV) which may be okay depending on type Paper products
Here are a few suggestions to help you determine if a material is acceptable: Plastic bags containing seals or wrappers that are made by polyvinyl chlorides (PVC). (See for example, blister packs that use these types of seals or wrappers.) Lunch bags Bread bags Ice bags Cereal bags Wire chip bags Woven shopping bags which are often translucent blue in color Pillow covers and pillow cases Hearing aid batteries Alarms and timing devices Paint rollers Drip pans Containers for antifreeze or other automotive fluids Containers for solvents, cleaners or paints

Licensing About the Crematory

Cremation is a regulated process designed to ensure the proper treatment of the deceased and the well-being of the living. In California, specific licensing requirements and operational protocols help make this solemn act dignified and orderly. The Bureau of Cemeteries and Funeral Firms provides oversight for these cremation procedures, including the necessary requirements for operating a crematory.
A crematory may operate under a variety of structures: as a single-entity corporation, as an LLC, a partnership, or a sole proprietorship. While all these businesses must be properly licensed, most licenses are specific to individual facilities and locations.
Occasionally, crematories will be set up as sole proprietorships. In these situations, the sole proprietor is required to register appropriately with the California Secretary of State as a business operating under an assumed name (DBA). All operating crematories must have a physical address within California where their equipment and staff are located. The license will list this address, and the business cannot perform cremations at any other facility.
Crematory licenses are separate from the licenses that govern funeral homes. In California, a single business may operate both a crematory and a funeral home, but the license will still be two distinct entities. This distinction is one reason that the California Department of Consumer Affairs requires the final disposition permit for cremation to be filed by a licensed funeral practitioner.
A crematory license is specific to a business entity, and multiple locations cannot be operated under a single license. Each location must have its own State Department of Consumer Affairs issued license. In addition, a designated manager (or officers) must be a licensed funeral director with appropriate connections to the crematory. A crematory license is valid for a period of two years, expiring on the last day of the month it was originally issued. At present, renewal costs 400 dollars.
California law does not require a crematory to be associated with a cemetery or funeral home. The basic requirements are that the facility is located in California, is appropriately licensed, and has a designated manager who is a licensed funeral director.

Cremation Procedure Guidelines

Before a cremation may be conducted, the law requires certain formalities to be performed. The disposition (the method of final disposition) must be authorized by a person legally entitled to control the final disposition of the decedent’s remains (see below), or by a document that carries out the decedent’s wishes for final disposition. Further, written authorization for cremation must be given to the crematory. (Health & Safety Code 103050.)
There are two basic types of documents, either of which is a valid cremation authorization under California law. The first is a pre-need authorization. This means that an individual has, during his or her lifetime, signed a written authorization.
There are also post-need authorizations. These are generally contained in such documents as wills, powers of attorney, and declarations of intent (a relatively new document that is becoming widely used). A recent California case (Soforenko v. LHSC (2017) 11 Cal.App.5th 844, 254 Cal.Rptr. 3d 56) addressed the validity of a "declaration of intent." A declaration of intent is a document that, among other things, states how an individual wants his or her remains to be disposed of after death. California has passed a law that recognizes declarations of intent as a valid form of written authorization for final disposition. Soforenko held that a "declaration of intent" (as defined by California law) was a valid document directing the disposition of Mr. Soforenko’s remains due to his failure to designate an agent to control his disposition.
The "agent," when there is no pre-need authorization for final disposition, is the person legally entitled to control the final disposition of another’s remains. In California, the following are entitled to control final disposition of a decedent’s remains:
The authorization for cremation forms to be used by mortuaries and cremation facilities may be obtained at any time. However, California law does state that the cremation of the decedent’s remains cannot be performed until 24 hours after a death certificate has been signed by the physician in charge of the patient’s care during his or her last illness (or, if the decedent did not receive care from a physician during his or her last illness, until 48 hours from the time of death). (Health & Safety Code 11375 & 117625.)

Next of Kin and Cremation Procedures

The next in kin to the deceased is usually the one who would have the basic right to authorize a cremation. Often the surviving spouse is the person who gives permission for the cremation. Who qualifies as the surviving spouse is another matter though; many California courts have made it clear that a statutory "marriage" on the books may or may not be valid, and often excluded parties are successful at getting the courts to rule that somehow they are a proper surviving spouse. The first daughter, son, parent, sibling, niece, nephew, cousin, or friend can be the next in kin. Finally, a close friend can be the next of kin. A longtime roommate of the deceased could be a proper person to give permission to the cremation.
If there is a dispute as to whether a party has the right to order the cremation, then the cremation facility cannot proceed with the cremation. Instead, the facility must provide written notice to the disputing party. A copy of that notice should be provided to the person or entity holding the deceased, if he or she has possession of the deceased. In other words, the cremation cannot go forward with a good faith objection.

Environmental Regulations and Health Issues

The cremation of human remains must take into consideration numerous environmental and health regulations. For instance, one common myth is that cremated remains cannot be buried. In fact, in the vast majority of the State of California, cremated remains may in fact be buried if one so desires, however, only the local government agency having jurisdiction over the applicable cemetery should be queried as certain municipalities in California have enacted their own laws limiting burials to either earth, above ground or cremated remains. One important note on this subject is that, while the Cremated Remains Interment Act allows all cremated remains to be buried, only those cremated remains which are enclosed in an incineration container; i.e., a casket or urn, are allowed to be put in a cremation mausoleum; whereas those cremated remains which are not in a casket or urn, whether they have been placed into an incineration container or not, must be buried.
Because certain cremated remains, depending on the manner in which they were cremated, do not lend themselves to being "authorization granted to dispose of ashes" under Section 7054 of the Health and Safety Code and the disposition thereof in certain jurisdictions would be in violation of local ordinances preventing "noxious odors", the condition of such cremated remains varying in accordance with the nature of the petroleum fuel combusted in the past and today in the various crematories, embalming events prior to cremation, the helmet of the cremation retort, air emissions, the types of containers used for transport from the crematory to the cemetery/mausoleum, public or private, the ambient temperature/humidity levels and the length of time it takes to transport the cremated remains post cremation to the interment point, funeral homes take the proper steps to ensure the cremated remains are deposited into the Earth so as to eliminate these problems .
Additionally, not only do local ordinances come into play when dealing with the interment of cremated remains at cemeteries, but certain environmental regulations prescribed by each State control the disposition of cremated remains at cemeteries. Cremated remains that have been properly processed, will not create noxious odors, nor present any adverse effects to health or the environment, however, some cremated remains are improperly processed and, especially following a break in their containment, do present a health hazard and could create environmental hazards. Such cremated remains, as well as those improperly packaged, should be picked up by properly certified and trained personnel, using the proper protective equipment, and disposed of at a Hazardous Waste land fill, as opposed by burial. While many funeral homes are disposed to the interment at the cemetery of all cremated remains which they receive from crematory operators, if the cremated remains present unusual odors, are leaking from their container, are not properly sealed, or are not cremated to ash, they should be picked up at the cemetery and returned to the funeral home for proper handling.

Specific Situations Regarding Laws on Cremation

Although California generally places few restrictions on the cremation process, circumstances such as unresolved homicides, unidentified or unclaimed bodies, and persons potentially involved in crimes affecting the decedent can come into play and change the process. On rare occasions, the government has a legitimate cause to halt the cremation of a deceased person. Generally, if someone is suspected of committing a crime that contributed to the death of the decedent, state law requires that the body of the deceased be immediately turned over to the medical examiner. State law also requires the medical examiner to conduct an autopsy and keep the body at a facility for about 3 to 10 days.
If no suspects are identified in the death of the decedent, the medical examiner will make a determination on the manner of death. If the medical examiner wants to keep the body longer, permission must be granted by the surviving family member(s) of the decedent. The social security administration (SSA) pays for the burial and funeral expenses of unidentified persons under specific circumstances; i.e., the deceased person has no living relatives and meets SSA income qualifications. The local SSA office will choose a relative, guardian, or legal representative to serve as the representative payee and will provide a one-time payment. The representative payee pays for the funeral and burial expenses using the funds and receives reimbursement from the SSA.
California outlines requirements regarding the disposition of unclaimed bodies. If no person can be identified to dispose of the remains of a decomposed body, the county coroner is responsible for making arrangements for its cremation and burial. The county coroner is also responsible for burying all other decedents who die without any known relatives.

Changes and Recent Developments on Cremation Laws

Recent years have seen several legislative updates pertinent to cremation and the funeral industry. The following are a couple of the most significant changes: SB 570 Center for Public Interest Law. SB 570 requires Director of the Department of Consumer Affairs (DCA) to develop and disseminate information regarding right of citizen of California to file complaint regarding licensed or certified funeral establishment or licensee or registrant at www . dca.ca.gov, Governor’s website and under California Funeral Directors Association website. AB 1584 Authorize Funeral Establishments to Cremate Remains under Certain Conditions. AB 1584 will permit licensed funeral directors to cremate remains under certain conditions specified in the bill.