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What You Need to Know About Cremation and Estate Planning


Among the issues you should consider as part of your estate planning is the final burial or cremation of your remains. Many Florida residents prefer cremation, as it does not require securing a burial plot. If cremation is your preference, you should say so in your will and provide any necessary direction regarding the disposal of cremated remains.

Florida Laws Governing Cremation

Florida law requires all cremations be performed by a funeral director licensed under state law to provide such services. A “legally authorized person” must give written consent to perform the cremation. The local medical examiner must also sign-off on the cremation after reviewing the death certificate of the person to be cremation. And the cremation itself cannot occur until at least 48 hours have elapsed since the person’s death.

It is not legally necessary to embalm a body pending cremation, unless there is a public viewing scheduled beforehand. The funeral director must provide on-site refrigeration for the body, however, until the actual time of cremation. And while the body must be kept in a rigid, leak-proof container, it is not necessary to keep the body in a casket before cremation.

How to Legally Dispose of Cremated Remains

The funeral home will return the cremated remains to the family once the process is complete. Florida law does not mandate any particular procedure for keeping ashes. But if human remains are not claimed within 120 days of the cremation, the funeral home may legally dispose of the remains itself, such as by “scattering them at sea or placing them in a licensed cemetery scattering garden or pond or in a church columbarium.”

With respect to scattering ashes at sea, it is important to note that federal law–specifically, the clean Water Act–states ashes must be scattered at least three nautical miles from land. If the urn or container used to keep the ashes is not biodegradable, it must be disposed of separately. It is also illegal to scatter ashes at beaches located near the sea. And the U.S. Environmental Protection Agency must be notified of any scattering at sea.

As far as land-based scattering goes, there is generally no legal restriction on scattering ashes on private property, provided the owner consents. Keep in mind many “public” buildings, such as sports stadiums, are in fact private property. With respect to actual public lands, such as national parks, it is best to speak with the appropriate authorities before scattering remains.

Speak with a Lee County, Florida, Estate Planning Lawyer Today

Your estate plan may leave general or specific instructions regarding cremation and disposal of remains. Some people prefer to leave detailed instructions. Others simply appoint their executor or a family member to make these decisions. Whatever your choice, it is always best to put it in writing so there is no confusion after your death.

If you need legal advice on this or any related subject from a qualified Fort Myers estate planning attorney, contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free consultation.

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