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SENATE BILL 368
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Elizabeth "Liz" Stefanics and Marian Matthews
AN ACT
RELATING TO CREMATION; EXPANDING THE DEFINITION OF "CREMATION"
TO INCLUDE REDUCTION BY CHEMICAL AGENT OR BIOLOGICAL PROCESS;
PROVIDING FOR TRADITIONAL AND NONTRADITIONAL CREMATION
PROCESSES IN THE FUNERAL SERVICES ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 24-12A-1 NMSA 1978 (being Laws 1993,
Chapter 200, Section 1, as amended) is amended to read:
"24-12A-1. RIGHT TO AUTHORIZE CREMATION--DEFINITIONS.--
A. An adult may authorize the adult's own cremation
and the lawful disposition of the cremated remains by:
(1) stating the desire to be cremated in a
written statement that is signed by the adult and notarized or
witnessed by two persons; or
(2) including an express statement in the will
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indicating that the testator desired that the remains be
cremated upon death; and
(3) specifying in the written or express
statement the type of cremation intended by the authorization .
B. A personal representative acting pursuant to a
will or the provisions of Chapter 45, Article 3 NMSA 1978 or a
funeral service establishment, a direct disposition
establishment or a crematory shall comply with a statement made
in conformance with the provisions of Subsection A of this
section. The statement is authorization to the personal
representative, funeral establishment, direct disposition
establishment or crematory that the remains of the decedent are
to be cremated. Statements dated prior to April 5, 1993 are to
be given effect if they meet the requirements of Subsection A
of this section.
C. A personal representative, funeral service
establishment, direct disposition 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.
D. A funeral service establishment, direct
disposition establishment, crematory or employee of a funeral
establishment, direct disposition establishment or crematory or
other person that relies in good faith on a statement written
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pursuant to this section shall not be subject to liability for
cremating the remains in accordance with the express
instructions of a decedent. The written document is a complete
defense to a cause of action by any person against any other
person acting in accordance with the instructions of the
decedent.
E. As used in this section:
(1) "cremate" means to reduce a dead human
body by direct flame, chemical agent or biological processing
to a residue or soil that may include bone fragments; and
(2) "direct disposition establishment" means
an office, premises or place of business that provides for the
disposition of a dead human body as quickly as possible,
without a funeral, graveside service, committal service or
memorial service, whether public or private, and without
embalming of the body unless embalming is required by the place
of disposition."
SECTION 2. Section 58-17-3 NMSA 1978 (being Laws 2001,
Chapter 149, Section 3) is amended to read:
"58-17-3. DEFINITIONS.--As used in the Endowed Care
Cemetery Act:
A. "affiliate" means a corporation that is related
to another corporation by shareholdings or other means of
control and includes a subsidiary, parent or sibling
corporation;
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B. "burial park" means a tract of land that has
been dedicated to the purposes of and used, and intended to be
used, for the interment of remains in graves;
C. "care funds" means realty or personalty
impressed with a trust by the terms of a gift, grant,
contribution, payment, devise, bequest or contract and income
accumulated therefrom where legally so directed by the terms of
the transaction by which the principal was established;
D. "cemetery" means a place dedicated to and used
and intended to be used for the permanent interment of remains;
E. "cemetery authority" means a person that owns,
operates, controls or manages a cemetery or holds lands for
burial purposes;
F. "columbarium" means a structure or space in a
structure used, or intended to be used, to contain cremated
remains;
G. "cremated remains" means remains after
[incineration in a crematory ] reduction of a dead human body by
any cremation process ;
H. "cremation" means [the irreversible process of ]
reducing remains [to bone fragments through intense heat and
evaporation in a specifically designed furnace or retort ] by
direct flame, chemical agent or biological processing and
[includes] may include a mechanical or thermal process whereby
the bone fragments are pulverized [or otherwise further reduced
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in size or quantity];
I. "crematory" means [a structure of most durable
and lasting fireproof construction containing one or more
specifically designed furnaces or retorts, used, or intended to
be used, for] every place or premise that is used for cremation
and pulverization of remains;
J. "crypt" means the chamber in a mausoleum of
sufficient size to entomb the remains;
K. "depository institution" means an insured bank,
thrift institution or credit union;
L. "director" means the director of the financial
institutions division of the regulation and licensing
department;
M. "endowed care" means the general maintenance of
the cemetery area dedicated to endowed care, including the
cutting and trimming of lawns, shrubs and trees at reasonable
intervals, keeping all places where interments have been made
in proper order and keeping in repair the drains, waterlines,
roads, buildings, fences and other structures consistent with a
well-maintained cemetery; "endowed care" includes overhead
expenses necessary for the foregoing purposes, including
maintenance of machinery, tools and equipment, compensation of
employees for the performance of duties related to endowed
care, including reasonable payments for employees' pension and
other benefit plans, payment of reasonable and necessary
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insurance premiums, the maintenance of necessary records of lot
ownership, transfers and burials and the administration of care
funds in those instances where those administering the funds
fail or refuse to act;
N. "endowed or perpetual care cemetery" means a
cemetery or that designated portion of a cemetery for the
benefit of which a care fund is established;
O. "entombment" means the permanent interment of
remains in a crypt or vault;
P. "fraternal cemetery" means a cemetery owned,
operated, controlled or managed by any fraternal organization
or its auxiliary organizations, in which the sale of burial
space is restricted principally to its members;
Q. "grave" means a space of ground in a burial park
intended to be used for the permanent interment in the ground
of remains;
R. "interment" means the permanent disposition of
the remains by inurnment, entombment or burial;
S. "inurnment" means placing cremated remains in an
urn;
T. "lot", "plot" or "burial space" means space in a
cemetery owned by one or more individuals, an association or
fraternal or other organization and used, or intended to be
used, for the permanent interment of the remains of one or more
deceased persons and includes adjoining graves, adjoining
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crypts or adjoining niches;
U. "mausoleum" means a structure or building of
most durable and lasting fireproof construction used or
intended to be used for the permanent interment in crypts of
remains;
V. "municipal cemetery" means a cemetery owned,
operated, controlled or managed by [a ] an incorporated or
unincorporated political subdivision;
W. "niche" means a recess in a columbarium used, or
intended to be used, for the permanent interment of cremated
remains;
X. "no endowed care cemetery" means a cemetery for
the benefit of which no care fund has been established;
Y. "plot owner", "owner" or "lot proprietor" means
a person in whose name a burial plot is recorded in the office
of the cemetery authority as owner of the exclusive right of
burial, or who holds from the authority a conveyance of the
exclusive rights of burial or a certificate of ownership of the
exclusive right of burial;
Z. "religious cemetery" means a cemetery owned,
operated, controlled or managed by a recognized church,
religious society, association or denomination, or by a
cemetery authority or a corporation administering, or through
which is administered the secular matters of a recognized
church, religious society, association or denomination;
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AA. "remains" means the body of a deceased person;
and
BB. "vault" means a container that is designed for
placement in a grave space around a casket or urn."
SECTION 3. Section 61-32-3 NMSA 1978 (being Laws 1993,
Chapter 204, Section 3, as amended) is amended to read:
"61-32-3. DEFINITIONS.--As used in the Funeral Services
Act:
A. "alkaline hydrolysis" means the process of
reducing a dead human body to its elemental components using
water, alkaline chemicals and heat inside a watertight vessel;
[A.] B. "board" means the board of funeral
services;
[B.] C. "committal service" means a service at a
place of interment or entombment that follows a funeral
conducted at another location;
[C.] D. "cremains" means cremated remains or soil ;
[D.] E. "cremation" means the reduction of a dead
human body by direct flame, chemical agent or biological
process to a residue or soil that includes bone fragments;
[E.] F. "crematory" means every place or premises
that is devoted to or used for cremation and pulverization of
the cremains;
[F.] G. "crematory authority" means the individual
who is ultimately responsible for the operation of a crematory;
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[G.] H. "department" means the regulation and
licensing department;
[H.] I. "direct disposer" means a person licensed
to engage solely in providing direct disposition at a direct
disposition establishment, licensed pursuant to the Funeral
Services Act, as provided in that act;
[I.] J. "direct disposition" means only the
disposition of a dead human body as quickly as possible,
without a direct disposer performing or arranging a funeral,
graveside service, committal service or memorial service,
whether public or private, and without embalming of the body
unless embalming is required by the place of disposition;
[J.] K. "direct supervision" means that the
supervising funeral service practitioner is physically present
with and in direct control of the person being trained;
[K.] L. "disposition" means the final disposal of a
dead human body, whether it be by earth interment, above-ground
interment or entombment, cremation, burial at sea or delivery
to a medical school, when the medical school assumes complete
responsibility for the disposal of the body following medical
study;
[L.] M. "embalmer" means a person licensed to
engage in embalming and preparing a dead human body for funeral
service at a funeral establishment that is licensed pursuant to
the Funeral Services Act;
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[M.] N. "embalming" means the disinfection,
preservation and restoration, when possible, of a dead human
body by a licensed funeral service practitioner, licensed
embalmer or a licensed funeral service intern under the
supervision of a licensed funeral service practitioner;
[N.] O. "ennichement" means interment of cremains
in a niche in a columbarium, whether in an urn or not;
[O.] P. "entombment" means interment of a casketed
body or cremains in a crypt in a mausoleum;
[P.] Q. "establishment" means every office,
premises or place of business where the practice of funeral
service or direct disposition is conducted or advertised as
being conducted and includes commercial establishments that
provide for the practice of funeral service or direct
disposition services exclusively to licensed funeral or direct
disposition establishments or a school of medicine;
[Q.] R. "funeral" means a period following death in
which there is an organized, purposeful, time-limited, group-
centered ceremony or rite, whether religious or not, with the
body of the deceased present;
[R.] S. "funeral arranger" means a person licensed
to engage in arrangements and directing of funeral services at
a funeral establishment that is licensed pursuant to the
Funeral Services Act;
[S.] T. "funeral merchandise" means that personal
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property offered for sale in connection with the
transportation, funeralization or disposition of a dead human
body, including the enclosure into which a dead human body is
or cremains are directly placed, and excluding mausoleum
crypts, interment enclosures preset in a cemetery and
columbarium niches;
[T.] U. "funeral service intern" means a person
licensed to be in training for the practice of funeral service
under the supervision and instruction of a funeral service
practitioner at a funeral establishment or commercial
establishment, licensed pursuant to the Funeral Services Act;
[U.] V. "funeral service practitioner" means a
person licensed to engage in the practice of funeral service at
a funeral establishment or commercial establishment that is
licensed pursuant to the Funeral Services Act;
[V.] W. "funeral services" means those immediate
post-death activities related to a dead human body and its care
and disposition, whether with or without rites or ceremonies;
but "funeral services" does not include disposition of the body
by a school of medicine following medical study;
[W.] X. "general supervision" means that the
supervising funeral service practitioner is not necessarily
physically present in the establishment with the person being
trained but is available for advice and assistance;
[X.] Y. "graveside service" means a funeral held at
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the graveside only, excluding a committal service that follows
a funeral conducted at another location;
[Y.] Z. "jurisprudence examination" means an
examination prescribed by the board on the statutes, rules and
regulations pertaining to the practice of funeral service or
direct disposition, including the Funeral Services Act, the
rules of the board, state health regulations governing human
remains and the Vital Statistics Act;
[Z.] AA. "licensee in charge" means a funeral
service practitioner who is ultimately responsible for the
conduct of a funeral or commercial establishment and its
employees; or a direct disposer who is ultimately responsible
for the conduct of a direct disposition establishment and its
employees;
[AA.] BB. "make arrangements" means advising or
counseling about specific details for a funeral, graveside
service, committal service, memorial service, disposition or
direct disposition;
[BB.] CC. "memorial service" means a gathering of
persons for recognition of a death without the presence of the
body of the deceased;
DD. "natural organic reduction" means the
biological process of reducing a dead human body to the body's
elemental components using organic materials and heat inside a
watertight vessel;
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EE. "nontraditional cremation" means the reduction
of a dead human body to the body's elemental components,
whether in ash or soil, through a chemical or biological
process, including alkaline hydrolysis and natural organic
reduction;
[CC.] FF. "practice of funeral service" means those
activities allowed under the Funeral Services Act by a funeral
service practitioner, funeral arranger, embalmer or funeral
service intern; [and]
[DD.] GG. "pulverization" means the process that
reduces cremains to a granular substance; and
HH. "traditional cremation" means the reduction of
a dead human body by direct flame to a residue that may include
bone fragments."
SECTION 4. Section 61-32-11 NMSA 1978 (being Laws 1993,
Chapter 204, Section 11, as amended) is amended to read:
"61-32-11. LICENSURE OF ESTABLISHMENTS--FUNERAL
ESTABLISHMENTS--COMMERCIAL ESTABLISHMENTS--DIRECT DISPOSITION
ESTABLISHMENTS--CREMATORIES.--
A. Funeral establishment licenses shall only be
granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the
required fee;
(2) the establishment shall be maintained at a
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specific location primarily devoted to the practice of funeral
service and shall comply with the following minimum
requirements:
(a) a chapel shall be present in which
funerals may be conducted;
(b) a display room shall be present for
displaying caskets and other funeral merchandise; and
(c) a preparation room shall be present
with necessary drainage and ventilation and necessary
instruments and supplies for the preparation and embalming of
dead human bodies for burial or other disposition or
transportation; and
(3) a license shall not be issued or renewed
by the board unless the establishment is in compliance with the
Funeral Services Act and board rules.
B. Commercial establishment licenses shall only be
granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the
required fee;
(2) the establishment shall be maintained at a
specific location primarily devoted to the practice allowed for
a commercial establishment and shall comply with the following
minimum requirements:
(a) a preparation room shall be present
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with the necessary drainage and ventilation and necessary
instruments and supplies for the preparation and embalming of
dead human bodies for burial or other disposition and
transportation; and
(b) an office shall be present for
conducting business; and
(3) a license shall not be issued or renewed
by the board unless the establishment is in compliance with the
Funeral Services Act and board rules.
C. Direct disposition establishment licenses shall
only be granted under the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the
required fee;
(2) the establishment shall be maintained at a
specific location primarily devoted to the practice allowed for
a direct disposer and shall comply with the following minimum
requirements:
(a) a room shall be present with
necessary drainage and ventilation for housing a refrigeration
unit;
(b) a refrigeration unit,
thermodynamically controlled with a minimum storage area of
twelve and one-half cubic feet per body, shall be present for
sheltering of dead human bodies prior to burial or other
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disposition or transportation;
(c) an office shall be present for
conducting business;
(d) necessary supplies for safely
handling unembalmed dead human bodies; and
(e) if funeral merchandise is made
available, a display room shall be present for displaying
caskets and other funeral merchandise; and
(3) no license shall be issued or renewed by
the board unless the establishment is in compliance with the
Funeral Services Act and board rules.
D. Crematory licenses shall only be granted under
the following terms and conditions:
(1) applications for licensure shall be upon
forms furnished by the board and shall be accompanied by the
required fee;
(2) the crematory shall be maintained at a
specific location, including a funeral, commercial or direct
disposition establishment, primarily devoted to the practice
allowed for a crematory and shall comply with the following
minimum requirements:
(a) for a crematory that performs
traditional cremation: 1) a room shall be present with
necessary ventilation for housing a cremation retort; [(b) ] 2)
a cremation retort shall be present for cremating dead human
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bodies; and [(c)] 3) a unit to pulverize cremated dead human
bodies shall be present; and
(b) for a crematory that performs
nontraditional cremation: 1) a room shall be present that
houses the necessary appliances, containers and machinery for
performing alkaline hydrolysis or natural organic reduction;
and 2) the necessary supplies shall be maintained for safely
handling unembalmed dead human bodies; and
(3) no license shall be issued or renewed by
the board unless the crematory is in compliance with the
Funeral Services Act and board rules.
E. The board may adopt by rule additional
requirements in the interest of public health, safety and
welfare."
SECTION 5. Section 61-32-19 NMSA 1978 (being Laws 1993,
Chapter 204, Section 19, as amended) is amended to read:
"61-32-19. CREMATION--REQUIREMENTS--RIGHT TO AUTHORIZE
CREMATION--DISPOSITION OF CREMAINS.--
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
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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; and
(3) specifying in the written or express
statement the type of cremation intended by the authorization .
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
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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] decedent'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
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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."
SECTION 6. Section 61-32-19.1 NMSA 1978 (being Laws 1999,
Chapter 284, Section 13, as amended) is amended to read:
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"61-32-19.1. CREMATORY--SCOPE OF PRACTICE--LIMITATIONS.--
A. The scope of practice of a crematory and its
crematory authority is limited to traditional and
nontraditional cremation of dead human bodies and pulverization
of cremains. A crematory and its crematory authority shall act
as an agent of licensed funeral, commercial or direct
disposition establishments and schools of medicine. A
crematory and its crematory authority may:
(1) engage in transportation of dead human
bodies to the crematory; and
(2) cremate dead human bodies and pulverize
cremains.
B. After completion of the cremation process, if a
crematory and its crematory authority have not been instructed
by its agent to return the cremains to the person that
initiated the cremation services contract or to arrange for the
interment, entombment or ennichement of the cremains, the
crematory authority shall return, or cause to be returned, the
cremains to the establishment no later than thirty days after
the date of cremation.
C. A crematory and its crematory authority shall
maintain a system or process that ensures that any dead human
body in the crematory's possession can be specifically
identified throughout all phases of the cremation process.
D. A crematory shall keep an accurate record of all
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cremations performed for a period of not less than seven years.
E. The crematory and its crematory authority shall
certify to the board that the crematory will not exceed the
scope of practice allowed by law.
F. A licensed crematory shall not engage in any
activity not specifically permitted in this section."
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