Cremation: Legal Foundations and Definition
Die Cremation (also called incineration or cremation) refers to the cremation of a deceased person by burning the body in a specially designated facility, the crematorium. This process, alongside burial, constitutes one of the two officially recognized primary forms of burial and is subject to comprehensive statutory regulations. Cremation is a common practice in Germany, Austria, Switzerland, and many other countries, and it can be motivated by both religious and non-religious reasons.
The following provides a systematic overview of the various legal aspects of cremation.
Legal Regulations for Cremation
General Burial Laws
In the Federal Republic of Germany, Austria, and Switzerland, cremation is primarily regulated by the burial laws of the respective federal states or cantons. German federal law does not provide a nationwide uniform regulation for cremation; therefore, the requirements, procedures, and conditions are set out in state burial laws and corresponding ordinances. These regulations include, among others:
- Permissibility and prerequisites for cremation
- Requirements for crematoria
- Procedure for cremation
- Handling of ashes
Requirement for consent and care of the deceased
Consent through the will of the deceased
According to burial laws, the prerequisite for cremation is usually the explicit declaration of intent by the deceased during their lifetime. If this is not available, written consent from the next of kin is required. The order of the persons entitled to care for the deceased is governed by the state laws and, in some cases, by the Civil Code. The consenting individuals assume responsibility for the execution and type of burial.
Obligation to arrange burial and duty of care for the deceased
The duty to ensure a proper burial, including cremation, lies with the so-called obligated persons – usually the next of kin. Cremation may only be performed after clear documentation of the intent regarding the type of burial is available.
Procedure and requirements for cremation
Second post-mortem examination (crematorium post-mortem)
A mandatory prerequisite for cremation is the performance of a second, independent post-mortem examination, known as the crematorium post-mortem (§ 16 Burial Act NRW and corresponding regulations in other federal states). The second examination is used to rule out previously undetected indications of an unnatural death, as a subsequent judicial autopsy is only possible with difficulty after cremation. The examination is usually carried out by the competent public health officer or medical examiner.
Documentation and information requirements
Each cremation is subject to documentation requirements. The necessary documents typically include:
- Death certificate or certificate of death
- Medical certificate of the second post-mortem examination (cremation certificate)
- Proof of consent to cremation
- Permits in special cases (e.g., in cases of unnatural deaths)
- Records of the identification check of the body before cremation
Technical requirements for crematoria
Crematoria require official approval and are subject to strict technical, hygienic, and environmental regulations. After complete combustion of the corpse, the ashes are placed into an ash capsule, sealed and clearly labeled to prevent mix-ups.
Handling of human ashes
Legal situation regarding the ash capsule
It is legally required that the ashes are transferred exclusively into the ash capsule. Mixing the ashes of different deceased persons is prohibited. The ash capsule is usually provided with a clear identification mark and the necessary details of the deceased.
Interment of the ashes
Legal requirements regarding burial and the cemetery obligation (so-called ‘cemetery requirement’ in Germany) stipulate that the human ashes from a cremation must be interred in a cemetery, an urn grave, or in permitted exceptions (e.g., sea burial). Private keeping of the urn is generally not allowed in Germany, while Austria and Switzerland have adopted differing rules in their own legal systems.
Exceptions: Alternative forms of burial
In certain federal states and countries, alternative forms of ash dispersal (such as alpine meadow burial, tree burial, or diamond burial) are permitted under specific conditions, provided that respectful treatment and dignity for the deceased are maintained.
Cross-border regulations and international aspects
Transferring ashes abroad
The transfer of ashes abroad and their burial are subject to the regulations of the destination country and international agreements (e.g., the Berlin Convention on the Transport of Corpses). The transfer requires an urn with a sealed ash capsule and appropriate documentation (international corpse pass, death certificate, official certificates).
Import of urns from abroad
When importing an urn into Germany, the import regulations of the federal states apply. It must be ensured that the form of interment complies with German burial laws and, in particular, with the cemetery obligation.
Special features and special regulations
Exceptions in cases of police or criminally relevant deaths
In cases where there is evidence of non-natural death, foul play, or unclear cause of death, approval from the relevant investigative authorities or the public prosecutor’s office must be obtained before any cremation. Cremation is not allowed until final clearance is given.
Minors or deceased persons incapable of consent
If there is no declaration of intent regarding the form of burial for minors or other deceased persons incapable of giving consent, the obligated next of kin make the decision. If they fail to fulfill their duty, the administrative court or the competent authority may intervene.
Cost aspects and public law fees
Cremations are subject to fees. The costs are determined by the fee schedules of the respective crematoria and municipal statutes. There may also be additional costs for the second post-mortem examination, obtaining documents, transfer, and form of burial. The primary obligation to bear costs lies with the relatives, subsidiarily municipal authorities may assume responsibility as part of public safety duties (§ 8 burial laws of the states).
Legal position with regard to religious communities
Cremation is now accepted or at least permitted under the same conditions as burial in nearly all religious communities. Historically, there were some religious reservations, for example within Catholicism and Orthodox Judaism, but these have largely been relaxed. The specific design of religious rituals can be influenced by legal conditions, particularly regarding the handling of ashes and the form of interment.
Summary
Cremation is a burial form that is strictly regulated by law and subject to a wide range of state, administrative, and, in some cases, federal or European requirements. Numerous legal prerequisites must be observed, from the declaration of intent to the double post-mortem examination to cemetery-based interment and the dignified handling of the ashes. There are deviations and special features depending on the state, country, and individual case, especially in international matters or alternative forms of burial. Compliance with these legal requirements serves to protect human dignity, public safety and hygiene, and to ensure proper practices in handling the deceased.
Frequently Asked Questions
Who may legally arrange the cremation of a deceased person?
Under German burial law, the cremation of a deceased person may only be arranged by certain individuals. Usually, this includes the next of kin – in particular, spouses, registered civil partners, children, parents, or, if none of the above are available, other relatives as mandated by so-called care-of-the-dead provisions. The specific order of priority is set by the relevant state burial law. In every case, the declaration of intent of the deceased must be observed, provided such a decision for or against cremation was made during their lifetime. If such a declaration is missing, the next of kin have the right and, if necessary, the obligation to decide according to the presumed wishes of the deceased. Cremation is only permissible if all legally required documents are available and there are no legal obstacles.
Which legal documents are required for a cremation?
Several legal documents and certificates are required to conduct a cremation. First, a death certificate issued by a physician following death must be available. In most federal states, a second post-mortem examination, known as the cremation post-mortem, by a public health or forensic physician is also required by law. This is to verify that no unnatural or unexplained cause of death is present. In addition, written consent to cremation is needed – either as a handwritten declaration by the deceased or, if absent, from the next of kin as part of the care-of-the-dead rights. In some federal states, a permit from the registry office or the local regulatory authority is also required. Presenting an identity card or passport and evidence of the degree of kinship is customary in the application process.
Which deadlines must be observed for cremation by law?
The deadlines for cremation are regulated by the burial laws of the respective federal states and may vary. In general, cremation may not take place earlier than 48 hours after the time of death to ensure all medical-legal requirements are met, particularly in respect to potential third-party involvement. There is often also a maximum period within which cremation or interment of the ashes must occur – in many federal states this is between 4 days (after the death certificate) and a maximum of 10 to 14 days after confirmation of death, with extensions being possible in exceptional cases. Legal delays may arise if a death investigation is initiated or the second post-mortem examination is still pending.
Can cremation be allowed while investigations are ongoing?
During an ongoing criminal investigation, for example when an unnatural cause of death is suspected, cremation is generally not permitted. Cremation is an irreversible process and largely precludes a subsequent autopsy or forensic examination. Therefore, special diligence is required to secure evidence: In cases of unexplained cause of death or if others may have been involved, the competent public prosecutor usually orders a judicial autopsy and may prohibit cremation until investigations are complete. Only once the cause of death is definitively and conclusively determined to be natural and no further investigations are necessary, may cremation lawfully proceed.
What special rules apply when cremating minors?
Cremating minors is subject to special legal oversight. In all such cases, the legal guardians or persons with parental authority must provide written consent. The burial law requires an especially thorough review of the circumstances of death, as there is a higher risk of unnatural causes in young decedents. The second post-mortem examination is always mandatory for minors and is often performed by forensic pathologists. If there are doubts about the cause of death or the consent of guardians, the public prosecutor is involved and may prohibit cremation until all legal doubts are resolved.
Is the determination of the fate of the ashes regulated by law?
In Germany, the so-called cemetery requirement or burial obligation applies, which stipulates that the ashes of the deceased may only be interred in an officially approved cemetery or a special urn burial site. Keeping, dispersing, or taking away the ashes outside of these facilities is permissible only in very few exceptional cases under strict conditions, for example with approved scattering fields or, in some federal states, on private property with prior official approval. The regulations vary by federal state and are often very restrictive. Violations constitute an administrative offense or even a criminal offense.
Can previously made cremation directives be legally contested?
Previously made cremation directives, for example by the deceased in a burial instruction or will, are generally legally binding and enforceable. Contesting is only possible if there is specific evidence of deliberate deception, mistake, coercion, or incapacity at the time the statement was made. Should close relatives raise objections to cremation, they must provide substantiated legal or factual reasons. Ultimately, if a dispute arises, the competent probate or administrative court decides on the validity and enforceability of the directive. Until the final judicial clarification, cremation may be suspended by law.
