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State
California
HSC Sec 7100-7117 CUSTODY, AND DUTY OF INTERMENT

HEALTH AND SAFETY CODE
SECTION 7100-7117





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) The public administrator when the deceased has sufficient
assets.
(b) (1) If any 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 (6), inclusive, of
subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to (6),
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, U.S. 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.


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.



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.



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.



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.



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.



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.



7105. (a) If the person or persons listed in paragraphs (1), (3),
(4), (5), and (6) of subdivision (a) of Section 7100 that 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
death, or in the case of a person listed in paragraph (2) of
subdivision (a) of Section 7100, within 10 days of the death, 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), and (6) of subdivision (a) of Section 7100 that would otherwise
have the right to control the disposition and arrange for funeral
goods and services cannot be found within seven days of the death, or
in the case of a person listed in paragraph (2) of subdivision (a)
of Section 7100, within 10 days of the death, 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) to (6), inclusive, of
subdivision (a) of Section 7100 that 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.




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.




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.



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.


7109. The court shall allow costs and reasonable attorney's fees to
a prevailing plaintiff against all defendants, other than the
coroner.


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.




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.



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.



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.



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.



7116. 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.



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.