2013 North Dakota Century Code Title 23 Health and Safety Chapter 23-06 Care and Custody of Dead
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CHAPTER 23-06
CARE AND CUSTODY OF DEAD
23-06-01. Right to dispose of one's own body.
Repealed by S.L. 1969, ch. 255, § 12.
23-06-01.1. Immunity from liability.
Repealed by S.L. 1989, ch. 303, § 5.
23-06-01.2. Application of other laws.
Sections 23-06-03, 23-06-04, 23-06-05, 23-06-06, 23-06-07, 23-06-08, 23-06-09, 23-06-10,
23-06-11, 23-06-12, 23-06-16, 23-06-17, and 23-06-19 do not apply to any body or parts thereof
disposed of after death pursuant to the authorization for disposal of a body or parts thereof
provided in and for the purposes of chapter 23-06.6.
23-06-02. Custody of body.
The person charged with the duty of burying the body of a deceased person is entitled to
the custody of such body for the purpose of burying it. When the coroner is required to hold an
inquest, however, the coroner is entitled to the custody of the body until such inquest has been
completed.
23-06-03. Duty of burial.
1. The duty of burying the body of a deceased individual devolves upon the surviving
husband or wife if the deceased was married or, if the deceased was not married but
left kindred, upon one or more individuals in the same degree, of adult age, nearest of
kin to the deceased and possessed of sufficient means to defray the necessary
expenses.
2. If the individual who has the duty of burial does not bury the body within the time
required by this chapter, the individual next specified shall bury the body.
3. If the deceased is not survived by an individual described by subsection 1 and did not
leave sufficient means to defray funeral expenses, including the cost of a casket, the
county social service board of the county in which the deceased had residence for
county general assistance purposes or, if residence cannot be established, the county
social service board of the county in which the death occurs shall employ some person
to arrange for and supervise the burial or cremation. If the deceased was a resident or
inmate of a public institution, the county in which the deceased was a resident for
county general assistance purposes immediately before entering the institution shall
employ a person to arrange for and supervise the burial or cremation. Each board of
county commissioners may negotiate with the interested funeral directors or funeral
homes regarding cremation expenses and burial expenses but the total charges for
burial services, including transportation of the deceased to the place of burial, the
grave box or vault, grave space, and grave opening and closing expenses, may not be
less than one thousand five hundred dollars. The county social service board shall pay
the charge for funeral expenses as negotiated by the board of county commissioners,
less any amount left by the deceased to defray the expenses.
4. If the person with the duty of burial under this section, or the personal representative of
the decedent's estate, if any, is aware of the decedent's instructions regarding the
disposition of the remains, that person shall honor those instructions, to the extent
reasonable and possible, to the extent the instructions do not impose an economic or
emotional hardship. A decedent's instructions may be reflected in a variety of methods,
including pre-need funeral arrangements a deceased articulated and funded in a
pre-need funeral service contract, a health care directive, a durable power of attorney
for health care, a power of attorney, a will, a document created under section
23-06-31, or a document of gift for an anatomical gift.
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5.
If the decedent died while serving in any branch of the United States armed forces, the
United States reserve forces, or the national guard, as provided by 10 U.S.C. 1481
section (a)(1) through (8) as effective through December 2001, and completed a
United States department of defense record of emergency data, DD form 93, or its
successor form or its equivalent branch's form, the duty to bury the decedent or to
provide other funeral and disposition arrangements for the decedent devolves on the
person authorized by the decedent pursuant to that form.
23-06-03.1. Payments on pre-need funeral contracts to be deposited - Depository
shall keep record of deposit - Personal property storage - Penalty.
Repealed by S.L. 2001, ch. 368, § 7.
23-06-04. Time within which burial or cremation must be made - Exceptions.
The dead body of a human being must be buried or cremated by the person charged with
that duty within eight days after the death of such person except when any of the following
occur:
1. The right to dissect the body is expressly conferred by law.
2. The body is being carried through this state.
3. The body is being removed from this state for the purpose of burial or cremation in
some other state.
4. A permit is obtained from the local health officer or the state department of health
allowing a longer time during which the body need not be buried or cremated. The
permit shall state the additional length of time during which the body need not be
buried or cremated.
5. The body is being stored for an extended period of time in a vault determined suitable
by the state department of health.
The date of burial or cremation must be the date of the committal service or date of placement
in a storage vault.
23-06-05. Failure to bury within required time - Penalty.
Any person who fails to comply with or who violates any of the provisions of section
23-06-04, or who refuses or neglects promptly to obey any order or instruction of the local board
of health, is guilty of a class B misdemeanor.
23-06-06. Neglect of burial - Penalty.
Every person upon whom the duty of making burial of the remains of a deceased person is
imposed by law who omits to perform that duty as required in this chapter is guilty of a class B
misdemeanor.
23-06-07. Regulation of burial - Issuance of burial-transit permit regulated.
The body of any person whose death occurs in this state may not be interred, deposited in a
vault or tomb, cremated, or otherwise disposed of, until a burial-transit permit has been properly
issued by a subregistrar. A burial-transit permit may not be issued by any subregistrar until a
complete and satisfactory certificate and return of the death has been filed with the state
registrar. If the certificate is incorrect or incomplete, the subregistrar may not issue the permit
until it is corrected or completed. In the case of any death outside of this state, a burial-transit
permit issued in accordance with the law and the health regulations in force in the state where
the death occurred, when accompanying a body shipped through or into this state, may be
accepted with the same effect as a permit from a subregistrar. If the death occurred from some
disease that is held to be communicable by the state department of health, the subregistrar shall
refuse to issue a permit for the removal or other disposition of the body except under the
conditions prescribed by the state department of health and the local board of health.
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23-06-08. Burial-transit permit - Contents.
The burial-transit permit must be on the form prescribed by the state registrar of vital
statistics, must be signed by the subregistrar issuing it, and may be limited to a statement by the
subregistrar showing:
1. That a satisfactory death record has been filed with the state registrar as required by
law.
2. That permission is granted to inter, remove, or otherwise dispose of the body of the
deceased.
3. The name, age, sex, and the cause of death of the deceased and any other necessary
details.
23-06-09. Disposition of burial-transit permit.
The undertaker, or person acting as undertaker, shall secure the burial-transit permit from
the subregistrar. The undertaker, or person acting as undertaker, shall deliver such permit to the
sexton or person in charge of the place of burial before interring the body or shall attach it to the
box containing the corpse when the same is shipped by any transportation company. Such
permit must be accepted by the sexton as authority for the interment of the body. A body may
not be accepted for carriage by a common carrier unless the permit is attached as required in
this section.
23-06-10. Sextons to endorse and return burial-transit permit - Record of burials.
Each sexton or person in charge of the burial ground shall endorse the date of interment
upon the burial-transit permit over the person's signature, and return the burial-transit permit to
the subregistrar. The subregistrar shall file all completed permits, so endorsed, with the county
recorder within ten days after the date of interment or within the time prescribed by the local
board of health.
The sexton shall keep a record of all interments made in the premises under the sexton's
charge, stating the name of the deceased person, the place of death, the date of burial, and the
name and address of the undertaker or funeral director. Such record at all times must be open
to public inspection.
In the absence of a sexton, the funeral director making the burial shall endorse and return
the burial-transit permit to the subregistrar.
23-06-11. Burial without burial-transit permit - Penalty.
It is unlawful for a person, acting as an undertaker, to inter, remove, or otherwise dispose of
the body of any deceased person without having received a burial-transit permit.
23-06-12. Transporting body without burial-transit permit.
It is unlawful for a transportation company or common carrier to transport, or accept for
transportation, the body of any deceased person unless that body is accompanied by a
burial-transit permit issued in accordance with the provisions of this chapter.
23-06-13. Dissection - When allowed.
The dead body of a human being may be dissected:
1. When the death occurs under circumstances in which a coroner is authorized by law to
hold an inquest upon the body, and a coroner authorizes such dissection for the
purposes of the inquest;
2. When the husband, wife, or one of the next of kin of a deceased person, charged by
law with the duty of burial, authorizes such dissection for the purposes of ascertaining
the cause of death; or
3. When permission has been given therefor by deceased.
23-06-14. What bodies may be used for dissection.
Any medical association, licensed physician and surgeon, or medical school, upon request,
may receive and remove free of charge the bodies of the following deceased persons, if such
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bodies are to be used within the state for the advancement of anatomical knowledge and
medical science and if proper notice is given to the relatives or guardian of the deceased:
1. A person executed pursuant to sentence of law.
2. A person dying in the penitentiary or county jail while under sentence for a crime.
3. A person required to be buried at public expense.
Preference must be given to medical schools, and such schools shall furnish the bodies to the
students of medicine and surgery.
23-06-15. When body not to be used for dissection.
If a person mentioned in section 23-06-14 has requested, during that person's last illness,
that that person be buried, that person's body may not be surrendered for dissection but must
be buried. If any friend, relative, or guardian of any such person requests, within thirty-six hours
after that person's death, that the body be turned over to such friend, relative, or guardian for
interment, such request must be complied with.
23-06-16. Bond given by person receiving body.
Every physician or surgeon and every medical school, before receiving any dead body, shall
give to the officer surrendering the same a sufficient bond conditioned that the body shall be
used only for the promotion of anatomical science and medical knowledge within this state and
so as not to outrage public feeling, and that after having been so used, the remains thereof shall
be disposed of in accordance with the provisions of section 23-06-17.
23-06-17. Bodies required to be buried or cremated after being dissected.
Any person who receives for dissection any dead body, in pursuance of the provisions of
this chapter, shall decently bury the body in some public cemetery or shall cremate the same in
a furnace properly constructed for that purpose after the dissection has been made.
23-06-18. Dissection - Removal of body - Sale - Penalty.
Any person who receives a body for use under the provisions of section 23-06-14 and uses
the same for any other purpose, or who removes the same beyond the limits of this state, or
who buys or sells any such body, or traffics in the same, is guilty of a class B misdemeanor. It is
unlawful for an officer to refuse to deliver the remains or body of any deceased person, when
demanded under the provisions of section 23-06-14.
23-06-19. Interference with burial of dead limb or member of body - Penalty.
All provisions of this chapter requiring the burial of a dead body or punishing interference
with or injuries to a dead body apply equally to any dead limb or member of a human body,
separated therefrom during lifetime.
23-06-20. Where body may be buried.
No dead human body may be buried in this state except in a properly registered cemetery
or in some other place requested by the relatives and friends of the deceased if the same is
authorized by the state department of health and all rules and regulations promulgated by the
department in that connection have been complied with.
23-06-21. Regulation of cemeteries.
All persons, corporations, municipalities, associations, and organizations owning,
conducting, or maintaining a cemetery or plot for the burial of dead human bodies shall:
1. Provide for a sexton or secretary.
2. Cause the lot or parcel of ground used and designated as a cemetery to be platted into
orderly blocks and lots, alleys and streets or driveways, giving to each a distinctive
name or number that must be a permanent designation of its location.
3. File the original plat with the recorder of the county in which the cemetery or place of
burial is located and the copy or blueprint thereof with the sexton or secretary.
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4.
5.
6.
Register with the state department of health the name and location of the cemetery or
place of burial, the name and address of the sexton, and the name and address of
other officers of the cemetery association, corporation, or organization.
Furnish such information and reports as the state department of health may require
including the submission of plans and specifications for review and approval before
constructing, erecting, or placing on the burial site for the burial or disposition of any
human remains any interment structure or device constructed or placed wholly or
partially above the natural surface of the ground.
Keep a local register of all burials showing as to each burial the name of the
deceased, the date and location of burial, the date of death, and the name and
address of the undertaker.
23-06-21.1. Title to burial plots reverts after sixty years - Procedure - Abandonment.
Any entity owning, conducting, or maintaining a cemetery or plot for the burial of dead
human bodies may use the procedures in this section to reinvest itself with the title to a portion
of a cemetery which was conveyed by deed to a person but which has not been used for
purposes of burial for more than sixty years.
1. The entity owning, conducting, or maintaining a cemetery may pass a resolution
demanding that the owner of a portion of a cemetery which has been unused for more
than sixty years express an interest in the cemetery plot. The entity shall personally
serve a copy of its resolution on the owner in the same manner as personal service of
process in a civil action. The resolution must notify the owner that the owner must,
within sixty days after service of the resolution on the owner, express an interest in
retaining the unused cemetery plot.
2. If the owner of the unused plot cannot personally be served with a copy of the
resolution of the entity because the owner cannot be found in this state or for any other
valid reason, the entity shall publish its resolution for three consecutive weeks in the
official newspaper of the county where the cemetery is located and shall mail a copy of
the resolution within fourteen days after the third publication to the owner's last-known
address.
3. If within sixty days after personal service or after publication of the board's resolution is
completed, the owner or person with a legal interest in the cemetery plot fails to
express an interest in retaining the unused cemetery plot, the owner's rights are
terminated and title to that person's plot reverts to the entity owning, conducting, or
maintaining the cemetery.
4. It is a conclusive presumption that an owner has abandoned a cemetery plot if for a
period of more than sixty years the owner has not used any portion of the lot for
purposes of burial and has not made provision for care of the lot beyond that provided
uniformly to all lots within the cemetery and if the owner has failed to express an
interest in retaining the cemetery plot after notice provided in this section.
23-06-22. Sexton - Term of office, records, duties.
The sexton or secretary appointed by the person, corporation, municipality, association, or
organization conducting a cemetery for the burial of dead human bodies shall hold office until a
successor is appointed and qualified. The sexton or secretary shall transfer all records to the
successor. The sexton or secretary shall enforce the laws of the state and the rules and
regulations of the state department of health with respect to the burial of dead human bodies
within the cemetery under the sexton's or secretary's charge.
23-06-23. State department of health to enforce regulation of cemeteries - Injunction.
The state department of health shall make and enforce such rules and regulations as are
necessary to carry out the laws relating to the regulation of cemeteries and may, through
injunction or other legal process, enforce compliance.
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23-06-24. Unlawful removal of dead body - Penalty.
Every person who removes any part of the dead body of a human being from any grave or
other place where the same has been buried, or from any place where the same is deposited
while awaiting burial, except as provided by law, is guilty of a class C felony.
23-06-24.1. Endangered gravesites - County action authorized.
Notwithstanding any other provisions of this chapter, the county commissioners of each
county may move graves or cremate the bodies in any graves which are located in the county
and maintained by the county when the gravesites are in imminent danger of destruction by
natural elements. The county commissioners shall, to the extent possible, give personal notice
to a relative of a deceased person whose grave is to be moved or whose body is to be cremated
if the identity of that person and the identity of the relative are known. The county
commissioners shall provide at least thirty days' prior notice in a legal newspaper of the county
of the commissioners' intended action to be taken pursuant to this section.
23-06-25. When body may be removed from cemetery - Penalty for failure to remove.
Whenever a cemetery or other place of burial is lawfully authorized to be removed from one
place to another, the right and duty to disinter, remove, and rebury the remains of bodies there
lying buried devolves upon the persons whose duty it is to bury the bodies, in the order in which
they are named in section 23-06-03. If all such persons fail to act, the duty devolves upon the
lawful custodians of the place of burial so removed. Every omission of such duty is punishable
in the same manner as other omissions to perform the duty of making burial are punishable.
23-06-26. Purchasing body forbidden - Penalty.
Every person who purchases or who receives, except for the purpose of burial, any dead
body of a human being, knowing that the same has been removed contrary to the provisions of
this chapter, is guilty of a class C felony.
23-06-27. Protection of human burial sites, human remains, and burial goods Unlawful acts - Penalties - Exceptions.
1. As used in this section:
a. "Burial goods" means any objects or items interred with human remains at the
time of burial.
b. "Disturb" means move, open, expose, dig up, disinter, excavate, remove, carry
away, damage, injure, deface, desecrate, loot, vandalize, mutilate, or destroy.
c. "Human burial site" means any place of interment, by any means, of human
remains or burial goods, which is designated by a grave marker or other burial
structure or which is not so designated, but is, in fact, discovered or believed to
exist on the basis of archaeological or historical evidence.
d. "Human remains" means any part of the body of a deceased human being in any
stage of decomposition.
e. "Land" means all lands, including submerged lands, located within the state of
North Dakota which are owned by the state or its political subdivisions, agencies,
or instrumentalities, or by any private person.
f. "Person" means a natural person, corporation, unincorporated association,
partnership, proprietorship, or governmental entity.
2. A person is guilty of a class C felony who, without authority of law, breaks open any
building wherein any body of a deceased human being is deposited while awaiting
burial, with the intent of either removing such human body, or any part thereof, or
stealing the coffin, or any part thereof, or anything attached thereto or connected
therewith, or the vestments or other articles intended to be buried with the human
body.
3. A person is guilty of a felony who, without authority of law, willfully, as defined in
section 12.1-02-02, disturbs a human burial site, human remains, or burial goods
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4.
5.
6.
7.
found in or on any land, or attempts to do the same, or incites or procures the same to
be done.
a. A person is guilty of a class B felony if the offense in this subsection was
committed for monetary gain, whether or not such monetary gain was related to
the use of the land in or on which the burial, remains, or goods were disturbed.
b. A person is guilty of a class C felony if the offense in this subsection was not
committed for monetary gain.
Any person who knows or has reasonable grounds to believe that a human burial site,
human remains, or burial goods, found in or on any land, are being disturbed or may
be disturbed, by human activity without authority of law or by natural forces, shall
immediately notify the local law enforcement agency with jurisdiction in the area in
which the burial, remains, or goods are located. A person is guilty of a class B
misdemeanor who is required to provide such notification and willfully, as defined in
section 12.1-02-02, fails to provide the same.
Any person who knows or has reasonable grounds to believe that that person has
encountered or discovered a human burial site, human remains, or burial goods
associated with a human burial, in or on any land, shall refrain from any activity which
might disturb or immediately cease any continued activity which might cause further
disturbance of such burial, remains, or goods and shall, as soon as practicable, report
the presence or discovery of the burial, remains, or goods to the local law enforcement
agency with jurisdiction in the area in which the burial, remains, or goods are located.
A person is guilty of a class B misdemeanor who is required to make such report and
willfully, as defined in section 12.1-02-02, fails to make the same. The requirements
imposed in this subsection do not apply to any person engaged in the salvaging
excavation or other disinterment of a human burial under authority of law.
Any person having been found guilty or having pleaded guilty, as a result of having
been charged with an offense under subsection 2 or 3, must be ordered to forfeit to the
state any and all human remains and burial goods acquired in connection with the
commission of the offense and may be ordered to forfeit to the state any and all
equipment used in connection with the commission of the offense. In addition, any
such person having been charged with an offense under subsection 3 must be ordered
to pay all reasonable costs actually incurred in the reinterment of the human remains
and burial goods so forfeited. In conjunction with the prosecution of any offense under
this subsection, the remains in question in the prosecution may, as deemed necessary,
be subjected to nonintrusive, nondestructive professional study for the exclusive
purpose of determining whether the remains are human.
Subsection 3 does not apply to the inadvertent disturbance of a human burial site,
human remains, or burial goods when the state department of health and the state
historical society have been notified of the disturbance and the human remains and
burial goods must be studied and reinterred pursuant to rules adopted by the state
department of health and the state historical society. Subsection 3 also does not apply
to situations in which the state department of health and the state historical society are
notified of the need to disinter and move the contents of human burial sites that are
recorded with the state historical society to prevent the destruction of the human burial
sites by actions including the construction of highways, dams, reservoirs, coal mines,
power generation and transmission facilities, pipelines, farming practices, and other
developments. Where feasible, the developments should avoid disturbance of the
human burial sites. In these situations the disinterred human remains and burial goods
must be studied and reinterred pursuant to rules adopted by the state department of
health and the state historical society.
23-06-28. Arresting or attaching dead body - Penalty.
Every person who arrests or attaches any dead body of a human being upon any debt or
demand whatever, or who detains or claims to detain it for any debt or demand or upon any
pretended lien or charge, is guilty of a class B misdemeanor.
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23-06-29. Penalty for violating provisions relating to dissections and general penalty.
Every person who violates any provision of this chapter relative to the dissection of dead
bodies of human beings, or who makes or procures to be made any dissection of the body of a
human being except by authority of law or in pursuance of permission given in accordance with
the provision of this chapter, is guilty of a class B misdemeanor. Every person who violates any
provision of this chapter for the violation of which another penalty is not specifically provided is
guilty of an infraction.
23-06-30. Abandoned cemeteries to be maintained by counties.
The board of county commissioners of each county may provide for the identification,
cataloguing, recording, and shall provide for the general maintenance and upkeep of each
abandoned cemetery located within such county. The board shall, at least once each year,
proceed to have the weeds and grass cut, restore gravestones to their original placement, and
perform any other general maintenance necessary to maintain the dignity and appearance of
the grounds. For the purposes of this section, a cemetery means any tract of land used as a
burial plot and which is filed with the recorder of the county as a public burying place. The board
of county commissioners of each county shall provide for the registration, with the state
department of health, of each abandoned cemetery within such county unless such cemetery
has been previously registered. Such registration must take place within one year of notification
being made to the board, by any interested party of the existence of such abandoned cemetery.
Expenditures may not exceed levy limitations as provided in section 57-15-27.2.
23-06-31. Cremation or other lawful disposition of a body - Authorization document Immunity.
1. A legally competent adult may prepare a written statement directing the cremation or
other lawful disposition of that adult's own remains pursuant to section 23-06-03. The
written statement must be signed and dated by the legally competent adult and may
be part of the legally competent adult's will.
2. A document that conforms to this section authorizes a crematorium or funeral
establishment to carry out the instructions of the legally competent adult who is the
subject of the document. It is not necessary for a crematorium or funeral establishment
to obtain the consent or concurrence of any other person when the crematorium or
funeral establishment cremates or otherwise provides for the lawful disposition of a
body pursuant to instructions contained in a document that conforms to this section.
3. This section does not mandate that a crematorium or funeral establishment cremate or
otherwise provide for the lawful disposition of a body pursuant to the document unless
the legally competent adult who executed the document articulated and funded in a
pre-need funeral service contract the legally competent adult's instructions as
expressed in the document.
4. A crematorium or funeral establishment that cremates or otherwise provides for the
lawful disposition of a body in good-faith reliance upon instructions of a decedent
pursuant to section 23-06-03 or on an apparently genuine document executed
pursuant to this section is not subject to civil liability or professional discipline. The
decision of a crematorium or funeral establishment to cremate or otherwise provide for
the lawful disposition of a body in reliance on a document executed pursuant to this
section is presumed to be made in good faith.
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