Many people have certain notions of whether they want to be buried or cremated or how their remains should be handled. 

Estate planning and elder law attorneys often hear of all kinds of elaborate plans for the disposition of clients’ remains. Here in the Port City, scattering ashes or “cremains” on or near the beach is a popular concept. 

However, sometimes, people’s ideas do not always align with the laws governing the disposition of cremains. The following is a general guide outlining how to dispose of cremains under North Carolina law.

In North Carolina, an “authorizing agent” is responsible for handling the disposition of remains, which would include cremains. The authorizing agent must be at least 18 years old.  The authorizing agent can be appointed through several documents, including a pre-need funeral contract, a Health Care Power of Attorney, or a Last Will and Testament. This authorizing agent can also be appointed in a written statement that is signed by the individual making the appointment and two adult witnesses.

If there are no documents appointing an authorizing agent, then North Carolina law specifies the following people may serve in the order listed below, with some exceptions, to authorize disposition of a decedent’s remains:

• A surviving spouse
• The majority of surviving, adult children who can be reasonably located
• Surviving parents
• The majority of surviving adult siblings over 18 who can be reasonably located
• Intestacy heirs, as identified by North Carolina law
• A person who has shown care for the decedent and is willing to take responsibility for the remains

If 30 days have passed after cremation and the authorizing agent has not claimed or specified final disposition, the cremains may be released to another family member with notification to the authorizing agent.

The ashes may be disposed to a crypt, niche, grave or scattering garden in a dedicated cemetery. Be sure to check with a cemetery about additional requirements.

The ashes may also be kept by an individual at home or scattered over privately owned land. Be sure to get the consent of the landowner if you do not own the property. 

North Carolina law permits scattering ashes by boat or airplane. While federal aviation laws forbid dropping objects from an airplane if the object could create a hazard, cremains are not considered harmful as long as the container of ashes is not also dropped. Be sure to let the crematorium know that you intend to scatter ashes from an airplane so that the crematorium will use magnets to remove any metal from the cremains.

Ashes may also be scattered over uninhabited public land, subject to some restrictions. Check the city or county zoning laws to determine what may legally constitute uninhabited public land, along with any requirements. For federally owned land, you should seek permission to scatter ashes. For example, the National Park Service has rules for scattering ashes on a park-by-park basis.

To scatter ashes in coastal areas like Wilmington - with the nearby ocean, rivers, lakes, and public waterways - there may be additional federal restrictions. The federal Clean Water Act requires that ashes scattered at sea are scattered at least three nautical miles from land.  The federal Environmental Protection Agency (EPA) forbids scattering ashes at a beach or wading pool. The EPA additionally requires notification within 30 days of scattering ashes at sea. For scattering ashes in inland waters like rivers or lakes, you may be required to obtain a permit from the state agency that manages the waterway.

North Carolina law additionally requires - for obvious reasons - that ashes be removed from the container before scattering. As a general rule, follow the laws and use common sense and courtesy when scattering ashes. When in doubt, reach out to a knowledgeable attorney, the state environmental agency, a health agency or mortuary board for guidance.

Kara Gansmann is an attorney in the Wilmington office of Cranfill Sumner & Hartzog LLP, where her practice encompasses elder law and estate planning. Kara advises individuals and families with estate planning needs and asset protection tactics. In this role, she strategizes with clients to preserve assets for long-term care and to leave legacy gifts to family members. Kara works with elderly clients in need of Medicaid crisis planning and Medicaid applications. As part of her practice, Kara drafts wills, trusts and powers of attorney. In the courtroom, Kara represents clients in the administration of estates, guardianship/incompetency proceedings, and guardianship administration. Kara also litigates estate and trust matters, including will caveats, the modification or termination of trusts, and litigation arising from estate documents or fiduciary roles. She is a member of the North Carolina Bar Association Elder Law and Special Needs Section and serves as co-chair of the CLE Committee for that section.  Kara also serves as a liaison between the North Carolina Bar Association Elder Law and Special Needs Section and the North Carolina Bar Association Estate Planning and Fiduciary Law Section.