Lisa J. wants to be buried on property she owns in Somervell County. She wants to know if Texas allows that. If she is allowed a private burial spot, her preference is to forego a casket and instead to be wrapped in biodegradable material when she is interred. Additionally, she would prefer her body not undergo the embalming process or any other process to delay deterioration of the body. She wants to know if there are restrictions that would prevent her from exercising these wishes.
It is possible to have a home burial or establish a family cemetery in Texas. Individual counties or municipalities may have zoning laws that must be followed with such burials. Lisa’s property is outside an incorporated division, but she should check with the county clerk to determine if there are any rules governing home burial that she must follow.
Shae Irving, a lawyer writing for www.nolo.com/law, recommends, when burying a body on private land, filing with the property deed a map which shows the burial spot to make clear to others where the body is buried.
Through the embalming process, blood is drained from the body and replaced with fluids that delay disintegration. Texas law requires that a body not finally disposed of within 24 hours of death be embalmed, refrigerated or placed in an approved, sealed container. 25 Texas Administrative Code §181.4. Therefore, Lisa will need to specify that her body be interred within 24 hours after her death in order to avoid these restrictions.
Lisa should execute a Medical Directive in which she makes clear that she is to be buried within 24 hours of her death. She should discuss, in detail, the logistics of disposal with her agent under the MPOA and her executor since any delay will thwart her desires.
No Texas law requires a casket for burial, although some cemeteries have rules specifying a certain type of container. Since Lisa is planning for burial on her own private land, she will not have to have a casket. Instead she can exercise her wish to be wrapped in biodegradable material.
There are various ways of designating burial preferences. They can be contained in the Last Will and Testament, or in a Medical Directive. If in the will, the executor or executrix is bound by his or her fiduciary duty to follow these instructions. The key is to make certain that the representative of the estate be made aware well in advance of the preferences.
Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives in beautiful Somervell County, near Chalk Mountain.