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Wednesday, December 9, 2009

Shark Bait - Cremation & Honoring Your Loved One

Q: We have acquaintances who would like to have their ashes scattered over Sonoma County. Is that legal?
Signed: “Dotting” Paradise, Lovingly.

Dear “Dotting” Paradise:
What an interesting query - it caused me to don my researcher’s cap! As I sauntered through the California laws relating to cremated remains and the sort, I discovered a few interesting quirks. First, technically it is against the law to dispose of any human remains unless it is in a cemetery.

What’s the “penalty” if you violate this law? Technically, breaking this law is classified as a misdemeanor, meaning it is a criminal offense and our Sonoma County District Attorney could file charges against the offender. (Health & Safety Code sec. 7054).

California is the largest state by volume for cremations. (Japan has the highest rate of cremation - 95%!) Now, with that said, I suspect that many Californians unknowingly violate the law by honorably scattering ashes under the cover of dark or discreetly, without the threat of prosecution. Not that I am encouraging to run afoul of the law, but the numbers do speak for themselves (and I don’t recall the last time I read an article about a family being prosecuted for illegally disposing of the ashes).

Now, hold on. Don’t lose hope to honor your loved ones and to also stay on the right side of he law. Most laws are a tangled weave of exceptions! You have a few options. You can legally dispose of the ashes one of the following ways:
• Door #1: In any church or religious shrine, with their written permission
• (H & S Code sec. 7054.6);
• Door #2: In “areas where no local prohibition exists” (H&S Code sec. 7116); or
• Door #3: At sea, which is defined as 500 yards from the shore. (H&S Code sec. 7117).

Let’s take a closer look behind Door #2—in areas where no local prohibition exists. This is a very broad exception. In essence, the key here is implicit or implied permission. For example, Smokey the Bear would even approve of you scattering ashes in our national parks - you just have to get a special use permit (Yosemite, for example, regularly issues such). Likewise, there is no prohibition against scattering the ashes on private land, with the land owner’s permission, of course. But be wary—if the private property owner goes to sell the land, he or she is supposed to disclose the existence of the human remains. Makes sense, if you think about it.

Now, let’s take a peek behind Door #3 - scattering at sea. Anyone can scatter the ashes, as long as they have a water vessel and a permit from the County. Yeap, that’s right. Ya gotta go by our Public Health Department (625-5th Street, Santa Rosa; (707) 565-4407) and they will help you with the paperwork. You just need eleven bucks and a copy of the death certificate. Now, when I first heard about this permit requirement, my cynic thought, “Oh, just another finger in the pie - government trying to control”. Oh, but contraire… if you think about it, the permit creates a permanent paper trial in case relatives of loved ones want to know where the remains are or visit the general site. Think of it as a “paper marker” for the future family genealogist who comes behind you.

Thanks for the great question - made me think and work - no easy answer. But as John Galsworthy quipped, “The beginnings and endings of all human undertakings are untidy”.

DEAR READERS: Do you have a legal question that is burning in your mind (but are afraid to ask an attorney…cha-ching…cha-ching)? If so, please send your questions to Debra A. Newby via email (contact information below). Your name will remain confidential. Although every inquiry may not be published, we will publish as many as possible. Finally, this Q & A Legal Column is intended as a community service to discuss general legal principles and does not create an attorney-client relationship.

Debra A. Newby is a resident of Monte Rio and has practiced law for 27 years. She is a member of the California, Texas and Sonoma County Bar Associations and currently maintains an active law office in Santa Rosa. Her law practice emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records). Debra can be reached via email (, phone (707-526-7200), fax (526-7202) or pony express (930 Mendocino Avenue, Suite 101, Santa Rosa, 95401).

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