2021 New Mexico Statutes
Chapter 61 - Professional and Occupational Licenses
Article 32 - Funeral Services
Section 61-32-19 - Cremation; requirements; right to authorize cremation; disposition of cremains. (Repealed effective July 1, 2024.)
A. No cremation shall be performed until all necessary documentation is obtained authorizing the cremation.
B. An adult person may authorize the person's own cremation and the lawful disposition of the person's cremains by:
(1) stating the person's desire to be cremated in a written statement that is signed by the person and notarized or witnessed by two other persons; or
(2) including an express statement in the person's will indicating that the testator desired that the testator's remains be cremated upon the testator's death.
C. A personal representative acting pursuant to the Uniform Probate Code or an establishment or crematory shall comply with a statement made in accordance with the provisions of this section. A statement that conforms to the provisions of this section authorizes a personal representative, establishment or crematory to cremate a decedent's remains, and the permission of next of kin or any other person shall not be required for such authorization. Statements dated prior to June 18, 1993 shall be given effect if they meet this section's requirements.
D. A personal representative, establishment or crematory acting in reliance upon a document executed pursuant to the provisions of this section, who has no actual notice of revocation or contrary indication, is presumed to be acting in good faith.
E. No establishment, crematory or employee of an establishment or crematory or other person that relies in good faith on a statement written pursuant to this section shall be subject to liability for cremating the remains in accordance with the provisions of this section. The written authorization is a complete defense to a cause of action by a person against any other person acting in accordance with that authorization.
F. Except as provided in Subsection G of this section, if a decedent has left no written instructions regarding the disposition of the decedent's remains, the following persons in the order listed shall determine the means of disposition, not to be limited to cremation, of the remains of the decedent:
(1) the surviving spouse;
(2) a majority of the surviving adult children of the decedent;
(3) the surviving parents of the decedent;
(4) a majority of the surviving siblings of the decedent;
(5) an adult person who has exhibited special care and concern for the decedent, who is aware of the decedent's views and desires regarding the disposition of the decendent's body and who is willing and able to make a decision about the disposition of the decedent's body; or
(6) the adult person of the next degree of kinship in the order named by New Mexico law to inherit the estate of the decedent.
G. If a decedent left no written instructions regarding the disposition of the decedent's remains, died while serving in any branch of the United States armed forces, the United States reserve forces or the national guard and completed a United States department of defense record of emergency data form or its successor form, the person authorized by the decedent to determine the means of disposition on a United States department of defense record of emergency data form shall determine the means of disposition, not to be limited to cremation.
H. A licensed establishment or crematory shall keep an accurate record of all cremations performed and the place of disposition of the cremains for a period of not less than seven years.
I. Cremains may be disposed of by any licensed establishment, crematory authority, cemetery or person having the right to control the disposition of the cremains, or that person's agent, in a lawful manner.
J. Legal forms for cremation authorization shall provide that persons giving the authorization will hold harmless an establishment from any liability for disposing of unclaimed cremains in a lawful manner after a period of one year following the return of the cremains to the establishment.
History: 1978 Comp., § 61-32-19, enacted by Laws 1993, ch. 204, § 19; 1995, ch. 17, § 2; 1999, ch. 284, § 12; 2011, ch. 22, § 3.
ANNOTATIONSDelayed repeals. — For delayed repeal of this section, see 61-32-31 NMSA 1978.
Cross references. — For right to authorize cremations, see 24-12A-1 and 24-12A-2 NMSA 1978.
Repeals and reenactments. — Laws 1993, ch. 204, § 32 repealed former 61-32-19 NMSA 1978, as enacted by Laws 1978, ch. 185, § 19, concerning funeral service practices, and § 19 of the act enacted a new section, effective June 18, 1993.
The 2011 amendment, effective June 17, 2011, authorized a person designated on a United States department of defense record of emergency data form to direct the disposition of the remains of a decedent who left no written instructions and who died while serving in the armed forces, reserve forces or national guard.
The 1999 amendment, effective June 18, 1999, added "disposition of cremains" in the section heading; inserted "and the permission of next of kin or any other person shall not be required for such authorization" in the second sentence of Subsection C; substituted "A licensed establishment or crematory" for "A crematory authority" and "place of disposition of the cremains for a period of not less than seven years" for "disposition of the cremains by the crematory for a period of not less than five years" in Subsection G; and substituted "persons giving the authorization will hold harmless an establishment" for "they will hold harmless an establishment" and inserted "following the return of the cremains to the establishment" in Subsection I.
The 1995 amendment, effective June 16, 1995, substituted "June 18, 1993" for "the effective date of this section" in Subsection C and inserted "adult" in Paragraph F(2).
