Code Section Group

Health and Safety Code - HSC

DIVISION 7. DEAD BODIES [7000 - 8030]

  ( Division 7 enacted by Stats. 1939, Ch. 60. )

PART 1. GENERAL PROVISIONS [7000 - 7355]

  ( Part 1 enacted by Stats. 1939, Ch. 60. )

CHAPTER 3. Custody, and Duty of Interment [7100 - 7117.1]
  ( Chapter 3 enacted by Stats. 1939, Ch. 60. )

7100.
  

(a) The right to control the disposition of the remains of a deceased person, the location and conditions of interment, and arrangements for funeral goods and services to be provided, unless other directions have been given by the decedent pursuant to Section 7100.1, vests in, and the duty of disposition and the liability for the reasonable cost of disposition of the remains devolves upon, the following in the order named:

(1) An agent under a power of attorney for health care who has the right and duty of disposition under Division 4.7 (commencing with Section 4600) of the Probate Code, except that the agent is liable for the costs of disposition only in either of the following cases:

(A) Where the agent makes a specific agreement to pay the costs of disposition.

(B) Where, in the absence of a specific agreement, the agent makes decisions concerning disposition that incur costs, in which case the agent is liable only for the reasonable costs incurred as a result of the agent’s decisions, to the extent that the decedent’s estate or other appropriate fund is insufficient.

(2) The competent surviving spouse.

(3) The sole surviving competent adult child of the decedent or, if there is more than one competent adult child of the decedent, the majority of the surviving competent adult children. However, less than the majority of the surviving competent adult children shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving competent adult children of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult children.

(4) The surviving competent parent or parents of the decedent. If one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving competent parent.

(5) The sole surviving competent adult sibling of the decedent or, if there is more than one surviving competent adult sibling of the decedent, the majority of the surviving competent adult siblings. However, less than the majority of the surviving competent adult siblings shall be vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving competent adult siblings of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult siblings.

(6) The surviving competent adult person or persons respectively in the next degrees of kinship or, if there is more than one surviving competent adult person of the same degree of kinship, the majority of those persons. Less than the majority of surviving competent adult persons of the same degree of kinship shall be vested with the rights and duties of this section if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kinship of their instructions and are not aware of any opposition to those instructions by the majority of all surviving competent adult persons of the same degree of kinship.

(7) A conservator of the person appointed under Part 3 (commencing with Section 1800) of Division 4 of the Probate Code when the decedent has sufficient assets.

(8) A conservator of the estate appointed under Part 3 (commencing with Section 1800) of Division 4 of the Probate Code when the decedent has sufficient assets.

(9) The public administrator when the deceased has sufficient assets.

(b) (1) If a person to whom the right of control has vested pursuant to subdivision (a) has been charged with first- or second-degree murder or voluntary manslaughter in connection with the decedent’s death and those charges are known to the funeral director or cemetery authority, the right of control is relinquished and passed on to the next of kin in accordance with subdivision (a).

(2) If the charges against the person are dropped, or if the person is acquitted of the charges, the right of control is returned to the person.

(3) Notwithstanding this subdivision, no person who has been charged with first- or second-degree murder or voluntary manslaughter in connection with the decedent’s death to whom the right of control has not been returned pursuant to paragraph (2) shall have any right to control disposition pursuant to subdivision (a) which shall be applied, to the extent the funeral director or cemetery authority know about the charges, as if that person did not exist.

(c) A funeral director or cemetery authority shall have complete authority to control the disposition of the remains and to proceed under this chapter to recover usual and customary charges for the disposition when both of the following apply:

(1) Either of the following applies:

(A) The funeral director or cemetery authority has knowledge that none of the persons described in paragraphs (1) to (8), inclusive, of subdivision (a) exists.

(B) None of the persons described in paragraphs (1) to (8), inclusive, of subdivision (a) can be found after reasonable inquiry, or contacted by reasonable means.

(2) The public administrator fails to assume responsibility for disposition of the remains within seven days after having been given written notice of the facts. Written notice may be delivered by hand, United States mail, facsimile transmission, or telegraph.

(d) The liability for the reasonable cost of final disposition devolves jointly and severally upon all kin of the decedent in the same degree of kinship and upon the estate of the decedent. However, if a person accepts the gift of an entire body under subdivision (a) of Section 7155.5, that person, subject to the terms of the gift, shall be liable for the reasonable cost of final disposition of the decedent.

(e) This section shall be administered and construed to the end that the expressed instructions of the decedent or the person entitled to control the disposition shall be faithfully and promptly performed.

(f) A funeral director or cemetery authority shall not be liable to any person or persons for carrying out the instructions of the decedent or the person entitled to control the disposition.

(g) For purposes of this section, “adult” means an individual who has attained 18 years of age, “child” means a natural or adopted child of the decedent, and “competent” means an individual who has not been declared incompetent by a court of law or who has been declared competent by a court of law following a declaration of incompetence.

(h) (1) For the purpose of paragraph (1) of subdivision (a), the designation of a person authorized to direct disposition (PADD) on a United States Department of Defense Record of Emergency Data, DD Form 93, as that form exists on December 31, 2011, or its successor form, shall take first priority and be used to establish an agent who has the right and duty of disposition for a decedent who died while on duty in any branch or component of the Armed Forces of the United States, as defined by Section 1481 of Title 10 of the United States Code.

(2) This subdivision shall become operative only if the United States Department of Defense Record of Emergency Data, DD Form 93, and Section 1482(c) of Title 10 of the United States Code are amended to allow a service member to designate any person, regardless of the relationship of the designee to the decedent, as the agent who has the right of disposition of a service member’s remains.

(Amended by Stats. 2011, Ch. 321, Sec. 1.5. (AB 905) Effective January 1, 2012.)

7100.1.
  

(a)  A decedent, prior to death, may direct, in writing, the disposition of his or her remains and specify funeral goods and services to be provided. Unless there is a statement to the contrary that is signed and dated by the decedent, the directions may not be altered, changed, or otherwise amended in any material way, except as may be required by law, and shall be faithfully carried out upon his or her death, provided both of the following requirements are met: (1) the directions set forth clearly and completely the final wishes of the decedent in sufficient detail so as to preclude any material ambiguity with regard to the instructions; and, (2) arrangements for payment through trusts, insurance, commitments by others, or any other effective and binding means, have been made, so as to preclude the payment of any funds by the survivor or survivors of the deceased that might otherwise retain the right to control the disposition.

(b)  In the event arrangements for only one of either the cost of interment or the cost of the funeral goods and services are made pursuant to this section, the remaining wishes of the decedent shall be carried out only to the extent that the decedent has sufficient assets to do so, unless the person or persons that otherwise have the right to control the disposition and arrange for funeral goods and services agree to assume the cost. All other provisions of the directions shall be carried out.

(c)  If the directions are contained in a will, they shall be immediately carried out, regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.

(Amended by Stats. 1998, Ch. 253, Sec. 2. Effective January 1, 1999.)

7101.
  

When any decedent leaves an estate in this state, the reasonable cost of interment and an interment plot of sufficient size to constitute a family plot and memorial including reasonable sums for either, or both, general and special endowment care of the plot proportionate to the value of the estate and in keeping with the standard of living adopted by the decedent prior to his demise, together with interest thereon from 60 days after the date of death, shall be considered as a part of the funeral expenses of the decedent and shall be paid as a preferred charge against his estate as provided in the Probate Code.

Reasonable costs of funeral services, together with interest thereon from 60 days after the date of death, shall be considered as a part of the funeral expenses of the decedent and shall be paid as a preferred charge against his estate as provided in the Probate Code.

If a claim for mortuary and funeral services, an interment plot or memorial is rejected the burden of proving that the cost of the funeral service, interment plot or memorial is disproportionate to the value of the estate and the standard of living adopted by the decedent while living shall be upon the executor or administrator rejecting the claim. This chapter does not prohibit any relative or friend of a decedent from assuming the duty or paying the expense of interment or the funeral services.

(Amended by Stats. 1968, Ch. 267.)

7102.
  

When a person is charged by law with the duty of interment he is entitled to the custody of the remains for the purpose of interment or, with respect to cremated remains, for the purpose of burial at sea in accordance with the provisions of this division; except that in any case where a coroner is required by law to investigate the cause of death, the coroner is entitled to the custody of the remains of the person whose death is the subject of investigation until the conclusion of the autopsy or medical investigation by the coroner. Any person in whose possession such remains are found, shall, upon demand by the coroner, surrender such remains to him.

(Amended by Stats. 1965, Ch. 1421.)

7103.
  

(a)  Every person, upon whom the duty of interment is imposed by law, who omits to perform that duty within a reasonable time is guilty of a misdemeanor.

(b)  Every licensee or registrant pursuant to Chapter 12 (commencing with Section 7600) or Chapter 19 (commencing with Section 9600) of Division 3 of the Business and Professions Code, and the agents and employees of the licensee or registrant, or any unlicensed person acting in a capacity in which a license from the Cemetery and Funeral Bureau is required, upon whom the duty of interment is imposed by law, who omits to perform that duty within a reasonable time is guilty of a misdemeanor that shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding ten thousand dollars ($10,000), or both that imprisonment and fine.

(c)  In addition, any person, registrant, or licensee described in subdivision (a) or (b) is liable to pay the person performing the duty in his or her stead treble the expenses incurred by the latter in making the interment, to be recovered in a civil action.

(Amended by Stats. 2002, Ch. 819, Sec. 6. Effective January 1, 2003.)

7104.
  

(a)  When no provision is made by the decedent, or where the estate is insufficient to provide for interment and the duty of interment does not devolve upon any other person residing in the state or if such person can not after reasonable diligence be found within the state the person who has custody of the remains may require the coroner of the county where the decedent resided at time of death to take possession of the remains and the coroner shall inter the remains in the manner provided for the interment of indigent dead.

(b)  A county exercising jurisdiction over the death of an individual pursuant to Section 27491, or who assumes jurisdiction pursuant to Section 27491.55 of the Government Code, shall be responsible for the disposition of the remains of that decedent. If the decedent is an indigent, the costs associated with disposition of the remains shall be borne by the county exercising jurisdiction.

(Amended by Stats. 1988, Ch. 1139, Sec. 2.)

7104.1.
  

If, within 30 days after the coroner notifies or diligently attempts to notify the person responsible for the interment of a decedent’s remains which are in the possession of the coroner, the person fails, refuses, or neglects to inter the remains, the coroner may inter the remains. The coroner may recover any expenses of the interment from the responsible person.

(Amended by Stats. 2001, Ch. 436, Sec. 18. Effective January 1, 2002.)

7105.
  

(a) If the person or persons listed in paragraphs (1), (3), (4), (5), (6), (7), and (8) of subdivision (a) of Section 7100 who would otherwise have the right to control the disposition and arrange for funeral goods and services fails to act, or fails to delegate his or her authority to act to some other person within seven days of the date when the right and duty devolves upon the person or persons, or in the case of a person listed in paragraph (2) of subdivision (a) of Section 7100, within 10 days of the date when the right and duty devolves upon the person, the right to control the disposition and arrange for funeral goods and services shall be relinquished and passed on to the person or persons of the next degree of kinship in accordance with subdivision (a) of Section 7100.

(b) If the person or persons listed in paragraphs (1), (3), (4), (5), (6), (7), and (8) of subdivision (a) of Section 7100 who would otherwise have the right to control the disposition and arrange for funeral goods and services cannot be found within seven days of the date when the right and duty devolves upon the person or persons, or in the case of a person listed in paragraph (2) of subdivision (a) of Section 7100, within 10 days of the date when the right and duty devolves upon the person, after reasonable inquiry, the right to control the disposition and arrange for funeral goods and services shall be relinquished and passed on to the person or persons of the next degree of kinship in accordance with subdivision (a) of Section 7100.

(c) If any persons listed in paragraphs (1), (3), (4), (5), (6), (7), and (8) of subdivision (a) of Section 7100 who would otherwise have equal rights to control the disposition and arrange for funeral goods and services fail to agree on disposition and funeral goods and services to be provided within seven days of the date on which the right and duty of disposition devolved upon the persons, a funeral establishment or a cemetery authority having possession of the remains, or any person who has equal right to control the disposition of the remains may file a petition in the superior court in the county in which the decedent resided at the time of his or her death, or in which the remains are located, naming as a party to the action those persons who would otherwise have equal rights to control the disposition and seeking an order of the court determining, as appropriate, who among those parties will have the control of disposition and to direct that person to make interment of the remains. The court, at the time of determining the person to whom the right of disposition will vest, shall, from the remaining parties to the action, establish an alternate order to whom the right to control disposition will pass if the person vested with the right to control disposition fails to act within seven days.

(d) If the person vested with the duty of interment has criminal charges pending against him or her for the unlawful killing of the decedent, in violation of Section 187 of, or subdivision (a) or (b) of Section 192 of, the Penal Code, the person or persons with the next highest priority prescribed by Section 7100 may petition a court of competent jurisdiction for an order for control of the disposition of the decedent’s remains. For this purpose, it shall be conclusively presumed that the petitioner is the person entitled to control the disposition of the remains if the petitioner is next in the order of priority specified in Section 7100.

(Amended by Stats. 2016, Ch. 39, Sec. 1. (SB 1284) Effective January 1, 2017.)

7106.
  

A cemetery authority may seek an order providing for the interment of the remains of one or more decedents. Where a proceeding is commenced involving the remains of more than one decedent the allegations of the petition shall separately state the facts as to each, and the court may make a separate order as to each.

(Enacted by Stats. 1939, Ch. 60.)

7107.
  

Notice of the time and place of the hearing on the petition shall be given as the court may direct. Upon the hearing the court shall make its order providing for the interment of the remains in such manner, at such time, and at such place as the court may determine to be just and proper, and for the best interests of the public health.

(Enacted by Stats. 1939, Ch. 60.)

7108.
  

If the coroner is directed to make such interment he shall make it in the manner provided by law for the interment of the indigent dead.

(Amended by Stats. 1939, Ch. 339.)

7109.
  

The court shall allow costs and reasonable attorney’s fees to a prevailing plaintiff against all defendants, other than the coroner.

(Amended by Stats. 2001, Ch. 436, Sec. 19. Effective January 1, 2002.)

7110.
  

Any person signing any authorization for the interment or cremation of any remains warrants the truthfulness of any fact set forth in the authorization, the identity of the person whose remains are sought to be interred or cremated, and his or her authority to order interment or cremation. He or she is personally liable for all damage occasioned by or resulting from breach of such warranty.

(Amended by Stats. 1993, Ch. 1232, Sec. 23. Effective January 1, 1994.)

7111.
  

A cemetery authority or crematory may make an interment or cremation of any remains upon the receipt of a written authorization of a person representing himself or herself to be a person having the right to control the disposition of the remains pursuant to Section 7100.

A cemetery authority or crematory is not liable for cremating, making an interment, or for other disposition of remains permitted by law, pursuant to that authorization, unless it has actual notice that the representation is untrue.

(Amended by Stats. 2002, Ch. 819, Sec. 7. Effective January 1, 2003.)

7112.
  

No action shall lie against any cemetery authority relating to the cremated remains of any person which have been left in its possession for a period of one year, unless a written contract has been entered into with the cemetery authority for their care or unless permanent interment has been made.

No licensed funeral director shall be liable in damages for the lawful disposition of any cremated human remains.

(Amended by Stats. 1993, Ch. 1232, Sec. 25. Effective January 1, 1994.)

7113.
  

A cemetery authority or licensed funeral director or a licensed hospital or its authorized personnel may permit or assist, and a physician may perform, an autopsy of any remains in its or his custody if the decedent, prior to his death, authorizes an autopsy in his will or other written instrument, or upon the receipt of a written authorization, telegram, or a verbal authorization obtained by telephone and recorded on tape or other recording device, from a person representing himself to be any of the following:

(a) The surviving spouse; (b) a surviving child or parent; (c) a surviving brother or sister; (d) any other kin or person who has acquired the right to control the disposition of the remains; (e) a public administrator; (f) a coroner or any other duly authorized public officer. A cemetery authority or a licensed funeral director or a licensed hospital or its authorized personnel is not liable for permitting or assisting, and a physician is not liable for performing, an autopsy pursuant to such authorization unless he or it has actual notice that such representation is untrue at the time the autopsy is performed. If such authorization is contained in a will, the autopsy may be performed regardless of the validity of the will in other respects or of the fact that the will may not be offered for or admitted to probate until a later date.

This section shall not authorize the obtaining of a verbal authorization by telephone and recorded on tape or other recording device for an autopsy of a deceased person if it is made known to the physician who is to perform the autopsy that the deceased was, at the time of his death, a member of a religion, church, or denomination which relies solely upon prayer for the healing of disease.

(Amended by Stats. 1971, Ch. 99.)

7114.
  

Any person who performs, permits or assists at, an autopsy on a dead body without having first obtained (a) the authorization of the deceased in writing, including, but not limited to, the last will of the deceased; or (b) the authorization in writing of the person designated by Section 7100 of this code as having the right to control the disposition of the remains of the deceased; or (c) in the case of a cemetery authority or a licensed funeral director or a licensed hospital or its agents or a physician, the written or verbal authorization described in Section 7113 or 7151.6 of this code, is guilty of a misdemeanor, except that this section shall not be applicable to the performance of an autopsy by the coroner or other officer authorized by law to perform autopsies.

(Amended by Stats. 1972, Ch. 1048.)

7116.
  

(a) Cremated remains may be scattered in areas where no local prohibition exists, provided that the cremated remains are not distinguishable to the public, are not in a container, and that the person who has control over disposition of the cremated remains has obtained written permission of the property owner or governing agency to scatter on the property. A state or local agency may adopt an ordinance, regulation, or policy, as appropriate, authorizing, consistent with this section, or specifically prohibiting, the scattering of cremated human remains on lands under the agency’s jurisdiction. The scattering of the cremated remains of more than one person in one location pursuant to this section shall not create a cemetery pursuant to Section 7003 or any other provision of law.

(b) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

(Amended by Stats. 2017, Ch. 846, Sec. 65. (AB 967) Effective January 1, 2018. Repealed as of July 1, 2020, by its own provisions. See later operative version added by Stats. 2017, Ch. 846.)

7116.
  

(a) Cremated remains or hydrolyzed human remains may be scattered in areas where no local prohibition exists, provided that the cremated remains or hydrolyzed human remains are not distinguishable to the public, are not in a container, and that the person who has control over disposition of the cremated remains or hydrolyzed human remains has obtained written permission of the property owner or governing agency to scatter on the property. A state or local agency may adopt an ordinance, regulation, or policy, as appropriate, authorizing, consistent with this section, or specifically prohibiting, the scattering of cremated human remains or hydrolyzed human remains on lands under the agency’s jurisdiction. The scattering of the cremated remains or hydrolyzed human remains of more than one person in one location pursuant to this section shall not create a cemetery pursuant to Section 7003 or any other provision of law.

(b) This section shall become operative on July 1, 2020.

(Repealed (in Sec. 65) and added by Stats. 2017, Ch. 846, Sec. 66. (AB 967) Effective January 1, 2018. Section operative July 1, 2020, by its own provisions.)

7117.
  

(a) Cremated remains may be taken by boat from any harbor in this state, or by air, and scattered at sea. Cremated remains shall be removed from their container before the remains are scattered at sea.

(b) Any person who scatters at sea, either from a boat or from the air, any human cremated remains shall, file with the local registrar of births and deaths in the county nearest the point where the remains were scattered, a verified statement containing the name of the deceased person, the time and place of death, the place at which the cremated remains were scattered, and any other information that the local registrar of births and deaths may require. The first copy of the endorsed permit shall be filed with the local registrar of births and deaths within 10 days of disposition. The third copy shall be returned to the office of issuance.

(c) For purposes of this section, the phrase “at sea” includes the inland navigable waters of this state, exclusive of lakes and streams, provided that no such scattering may take place within 500 yards of the shoreline. Nothing in this section shall be construed to allow the scattering of cremated human remains from a bridge or pier.

(d) Notwithstanding any other provision of this code, the cremated remains of a deceased person may be scattered at sea as provided in this section and Section 103060.

(e) This section shall remain in effect only until July 1, 2020, and as of that date is repealed.

(Amended by Stats. 2017, Ch. 846, Sec. 67. (AB 967) Effective January 1, 2018. Repealed as of July 1, 2020, by its own provisions. See later operative version added by Stats. 2017, Ch. 846.)

7117.
  

(a) Cremated remains or hydrolyzed human remains may be taken by boat from any harbor in this state, or by air, and scattered at sea. Cremated remains or hydrolyzed human remains shall be removed from their container before the remains are scattered at sea.

(b) Any person who scatters at sea, either from a boat or from the air, any human cremated remains or hydrolyzed human remains shall file with the local registrar of births and deaths in the county nearest the point where the remains were scattered, a verified statement containing the name of the deceased person, the time and place of death, the place at which the cremated remains or hydrolyzed human remains were scattered, and any other information that the local registrar of births and deaths may require. The first copy of the endorsed permit shall be filed with the local registrar of births and deaths within 10 days of disposition. The third copy shall be returned to the office of issuance.

(c) For purposes of this section, the phrase “at sea” includes the inland navigable waters of this state, exclusive of lakes and streams, provided that no such scattering may take place within 500 yards of the shoreline. Nothing in this section shall be construed to allow the scattering of cremated human remains or hydrolyzed human remains from a bridge or pier.

(d) Notwithstanding any other provision of this code, the cremated remains or hydrolyzed human remains of a deceased person may be scattered at sea as provided in this section and Section 103060.

(e) This section shall become operative on July 1, 2020.

(Repealed (in Sec. 67) and added by Stats. 2017, Ch. 846, Sec. 68. (AB 967) Effective January 1, 2018. Section operative July 1, 2020, by its own provisions.)

7117.1.
  

(a) Notwithstanding subdivision (a) of Section 7117, cremated remains may be transferred from a durable container into a scattering urn no more than seven days before scattering the cremated remains at sea from a boat. For purposes of this section, “scattering urn” means a closed container containing cremated remains that will dissolve and release its contents within four hours of being placed at sea.

(b) This section shall not be construed to allow the use of a scattering urn when the cremated remains are to be scattered by a plane over land or at sea.

(Added by Stats. 2012, Ch. 79, Sec. 1. (AB 1777) Effective January 1, 2013.)

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