Definition
The act of interring a dead human body. In law, burial encompasses not merely the physical act of placing a body in the earth but the full cluster of rights, duties, and regulatory requirements that govern disposition of the dead. The term extends to interment in a tomb or vault, and in some contexts to burial at sea.
Legal usage centers on three distinct dimensions: (1) the right of burial — who has the legal authority and obligation to arrange for disposition of the remains; (2) the duty of burial — the obligation imposed on certain persons, such as a spouse, parent, or householder, to ensure a body is properly interred; and (3) the regulation of burial — the body of statutory and administrative law governing where, how, and under what conditions burial may occur.
Common Language
Modern common usage (Wiktionary): The act of burying; interment; placing remains into the earth.
Historical common usage (Webster's 1913): The act of burying; depositing a dead body in the earth, in a tomb or vault, or in the water, usually with attendant ceremonies; sepulture; interment.
The common and legal meanings are broadly aligned in their core sense. The legal significance lies in what the common definition omits: burial is not a purely private act but a legally regulated event, carrying enforceable rights and duties, subject to coroner oversight, public health law, and — especially in the modern era — a layered framework of state licensing, cemetery regulation, and veterans' benefits administration.
Core Elements
The legal concept of burial typically involves three questions:
1. Authority: Who holds the right to control disposition of the body? At common law, this fell primarily to the next of kin, though the deceased's expressed wishes and, in some jurisdictions, statutory priority lists now govern.
2. Lawfulness: A burial is not legally valid unless made in conformity with local regulations. Where a body has been found under suspicious or unexplained circumstances, burial is generally unlawful until the coroner has conducted an inquest and issued authorization.
3. Duty: Certain relationships impose a legal duty to provide for burial. Failure to bury a person for whom one is legally responsible — a dependent, a household member — can give rise to civil liability and, historically, criminal exposure.
Why It Matters in Research
Researchers encounter burial law across a surprising range of contexts. The most common are: (1) estate and probate law, where disputes over burial authority and funeral expenses arise; (2) tort law, where wrongful interference with burial rights or mishandling of remains generates claims; (3) criminal law, where unauthorized disinterment or body theft constitutes a common law misdemeanor; and (4) veterans' law, where federal entitlements to burial benefits, national cemetery eligibility, and headstone allowances form a discrete and heavily administered body of law.
A key trap in historical sources: older authorities speak almost exclusively in terms of churchyard burial and Church of England burial rights. Rapalje & Lawrence's entry on burial right begins, "At common law, every person may be buried in the churchyard of the —" before the text cuts off, but the principle it reflects — a quasi-ecclesiastical entitlement to parish burial — has no direct American analog and should not be imported without care. American common law absorbed the duty and right of burial but shed the ecclesiastical framework.
The coroner's role is another area where historical sources diverge sharply from modern practice. Bouvier states plainly that a body cannot lawfully be buried until the coroner has held an inquest over it. This was a meaningful common law constraint. Modern statutes have replaced inquest requirements with medical examiner certification systems that vary significantly by state; the older rule should not be assumed operative without checking current statutory authority.
Anderson's equation of "burial ground" with "cemetery" appears in a brief note and reflects an older terminological fluidity. For regulatory and tax-exemption purposes, modern law has largely standardized around "cemetery," with "burial ground" appearing mainly in historical deeds and older statutes.
The criminal dimension deserves attention: taking up a dead body without lawful authority is a common law misdemeanor, but — as Anderson notes — there can be no larceny of the body, since a corpse is not property in the traditional sense. This distinction matters in research involving body theft, unauthorized disinterment, and tissue or organ removal cases, where the theory of liability typically runs through misdemeanor, tort, or specialized statute rather than theft.
Historical Dictionary Support
The historical dictionaries are largely in agreement on basics. Black's (both editions) and Bouvier define burial as the act of interring dead human bodies, with Bouvier adding the most substantive legal content: the lawfulness requirement, the coroner's inquest rule, and the duty imposed on those responsible for a decedent. Black's first edition includes the striking entry on "Burkism" — the practice of killing persons to sell their bodies for dissection — as an immediate follow-on to burial, reflecting the 19th-century body-snatching panic and the anatomy acts it produced. This historical context is entirely absent from modern dictionary entries and is easily overlooked by researchers encountering the term in 19th-century criminal law sources.
Rapalje & Lawrence's entry is fragmentary in the provided text — the burial right entry breaks off mid-sentence — but confirms the common law right to churchyard burial as the baseline.
What the historical sources collectively miss: the modern administrative and benefits law dimension. Veterans' burial entitlements, state funeral industry licensing, the regulatory apparatus governing cemetery associations and prepaid funeral contracts — none of this appears in any 19th-century source. Researchers working in those areas must look entirely to modern statutory and regulatory materials.
Jurisdictional Note
State law governs most aspects of burial, including authority to control disposition, required permits, cemetery regulation, and disinterment procedures. Variation is significant: some states have statutory next-of-kin priority lists that override common law; others have adopted the Uniform Disposition of Remains Act or similar legislation. Federal law governs veterans' burial benefits and national cemetery eligibility.
Encyclopedia Cross-Reference
VA Burial Benefits — National Cemeteries, Headstones, and Dependency and Indemnity Compensation (DIC) (The Law Mind Military, Veterans & Admiralty Law Encyclopedia)