What You Need to Know Before Choosing Cremation

Cremation is quickly becoming a preferred method of memorial in the U.S., and it is projected that 40-45% of those who pass away will be cremated this year, according to the Cremation Association of North America. Projections are that nearly 60% of the U.S. population will be choosing cremation by the year 2025. 

Many people request their cremated remains (or cremains) be scattered in a place that held meaning to the loved one and their family. In Virginia, there are no state laws controlling where you may keep or scatter ashes. However, there are regulations when it comes to scattering ashes on public land, federal land, at sea, or in the air. Below are some options that you have, and some things you should take into account:

  • Scattering ashes in an established scattering garden: Many cemeteries provide gardens for scattering ashes. If you’re interested, ask the cemetery for more information.
  • Scattering ashes on private land. You are allowed to scatter ashes on your own private property. If you want to scatter ashes on someone else’s private land, it is wise to obtain permission from the landowner. If permission is granted be sure that you get that permission in writing.  Also, be clear about whether family members will later be allowed to go onto the landowner’s property to pay respects to the loved one.  A landowner might well allow a one-time intrusion on their land, but not wish to have family members dropping by whenever they wish.
  • Scattering ashes on public land: While many people approach scattering ashes in public places with a “don’t ask, don’t tell” policy, scattering cremated remains in a public place requires permission and may be subject to special permitting and various restrictions. Municipalities and states have rules and restrictions that restrict scatterings.  To be safe, family members should check with the state or local governing authority before scattering a loved one’s remains in a park or other public place. 
  • Scattering ashes on federal land: Officially, you should request permission before scattering ashes on federal land. As with local or state land, however, you will probably encounter no resistance if you conduct the scattering ceremony quietly and keep the ashes well away from trails, roads, facilities, and waterways. You can find guidelines for scattering ashes on the websites for some national parks. For more information, begin your search at the website of the National Park Service.
  • Scattering ashes at sea. The federal Clean Water Act requires that cremated remains be scattered at least three nautical miles from land. The U.S. Environment Protection Agency (EPA) does not permit scattering at beaches or in wading pools by the sea. Finally, you are supposed to notify the EPA within 30 days of scattering ashes at sea. The Clean Water Act also governs scattering in inland waters such as rivers or lakes. For inland water burial, you may be legally required to obtain a permit from the state agency that manages the waterway. For more information, including the contact information for the EPA representative in Virginia, see Burial of Human Remains at Sea on the EPA website.
  • Scattering ashes by air: There are no state laws on the matter, but federal aviation laws prohibit dropping any objects that might harm people or property. The U.S. government does not consider cremains to be hazardous material, so all should be well so long as you remove the ashes from their container before scattering.

If you are requesting that your remains be scattered in a particular place, work with an estate planning attorney, such as myself, to find out in advance if your loved ones will be able to honor your wishes and, if they can, what will be required of them. If you’re curious about some other options for disposing of your body after death, please read our blog post about non-traditional post-mortem options.

If you have a family member that wishes to be cremated upon death, the consent for cremation is included as part of our proprietary 4-Needs Advance Medical Directive(TM), which enables you to set forth your preferences with regard to organ donation, funeral arrangements, and disposition of remains.

If you have not done Incapacity Planning (including our 4-Needs Advance Medical Directive(TM) and Financial Power of Attorney), Estate Planning, or Long-Term Care Planning, or if you have a loved one who is nearing the need for long-term care or already receiving long-term care, please contact Farr Law Firm, P.C. as soon as possible at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to schedule your appointment for our introductory consultation.

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About Evan H Farr, CELA, CAP

Evan H. Farr is a 4-time Best-Selling author in the field of Elder Law and Estate Planning. In addition to being one of approximately 500 Certified Elder Law Attorneys in the Country, Evan is one of approximately 100 members of the Council of Advanced Practitioners of the National Academy of Elder Law Attorneys and is a Charter Member of the Academy of Special Needs Planners.

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