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Non-traditional disposition of human remains in Colorado

by Sam Fresher and Nate Keever

Whether you are in charge of a loved one’s remains or making arrangements for yourself, Colorado is uniquely flexible in the variety of disposition methods available. Recent developments in Colorado law touching upon the disposition of remains may affect your final selection.

I. The Decisionmaker

Before considering how one may undertake the final disposition of remains, it is important to first consider who has authority to do so.

As a general matter,[1] the Probate Code tells us who has priority to control “disposition of last remains or ceremonial arrangements.”[2] And pursuant the Probate Code, the decedent’s wishes as set forth in a “Declaration of disposition of last remains”[3] are given first priority, with second priority given to the decision of an appointed or nominated personal representative, third priority to the decision of a surviving spouse, and so on.

Given the priority Colorado law affords to the decedent’s wishes as expressed in a declaration of disposition, you may wish to express your preferences by including such a declaration in your comprehensive estate plan. As for some newer options to include in (or leave out of) your declaration of disposition, read on.

II. Non-Burial Dispositions

In Colorado, options for disposition of last remains go well beyond traditional approaches such as cremation or cemetery interment.

For instance, in spring 2021 Colorado enacted a law specifically permitting final disposition by human composting, or, in legalese, “the contained, accelerated conversion of human remains into soil.”[4] This made Colorado the second state, behind Washington, to specifically authorize human composting as a disposition method.

Moreover, Colorado’s broad definition of “cremation” gives Coloradans added freedom to control disposition of last remains. In 2011, Colorado become one of a minority of states authorizing the use of a process called “alkaline hydrolysis,” also called “water cremation.”[5] Alkaline hydrolysis is a process for the disposal of remains using heat, water, and alkaline chemicals. Proponents of water cremation tout it as an environmentally friendly alternative to cremation by heat.

Coloradans favoring non-traditional methods of final disposition now have more options than ever. But what about burials and ceremonies occurring outside of the cemetery?

III. Non-Cemetery Interments and Ceremonies

Whether for sentimental or financial reasons, a person may wish to be buried on private land, or have their ashes scattered somewhere among Colorado’s majestic public lands. Fortunately for Coloradans, the legal requirements for laying a loved one to rest outside of a cemetery are not overly complex or burdensome. Yet, there are important procedures that a funeral home or other custodian of remains must follow in order to properly dispose of final remains or cremains on private property or on public lands.

While there is no general rule against burying human remains on private property in Colorado, our laws pertaining to public health and the environment set forth minimum procedural requirements that must be met before a private property burial may take place. For example, prior to the burial the funeral director or other person who first assumes custody of the body must obtain authorization from the appropriate county office (as designated by the state registrar). [6] In addition, the owner of land that is used to inter a body must record the burial with the county clerk and recorder of the county in which the land is situated within thirty days of the burial.[7]

Over the past decades, cremation has become an increasingly popular method of disposition. What rules must a family follow in order to scatter the ashes of a loved one on public or private land? Because a lawfully cremated body has already undergone “final disposition” according to Colorado law, a family has far more freedom in distributing cremains as opposed to interring identifiable human remains. To scatter cremains on private property, government authorization is generally not required (just permission of the landowner). As for public property, consult the relevant public entity before spreading cremains—some Colorado parks (such as Mesa Verde National Park) do not allow scattering of ashes, and some parks (such as Rocky Mountain National Park) impose special permitting requirements.

If you would like to arrange your own final disposition as part of your estate plan, or if you have a concern about the handling of remains, the attorneys at Dufford Waldeck are here to help.

[1] The treatment of human remains in Colorado is governed by myriad specific statutes and regulations at the state and municipal levels, many of which are not addressed in this article. [2] § 15-19-106, C.R.S. (2020). [3] § 15-19-104, C.R.S. (2020) (allowing declarant to make arrangements for the disposition of their own last remains, including the method of disposition, the person to undertake the disposition, ceremonial arrangements, etc.) [4] See Ch. 123, sec. 1, § 2-4-401(6.9), sec. 3, § 15-19-110, 2021 Colo. Sess. Laws. 488, 488-89. [5] § 12-135-103(4), C.R.S. (2020). [6] § 25-2-111(1), C.R.S. (2020). [7] § 25-2-111(7), C.R.S. (2020) (setting forth recording requirement and including categories of information that must be included in the recording).

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