Pushing daisies: California's new law allowing human composting
For a long time, most families planning a funeral (or stating their future preferences) in California chose between burial and cremation. Both can be meaningful, and plenty of people are at peace with one or the other. But more people have started asking what actually goes into each one, and some don't love the answers. A traditional burial often starts with embalming, which replaces the body's blood with a fluid that usually contains formaldehyde. California law doesn't require embalming (although, a coroner can require it in some cases), but it's still a common part of funerals that include a viewing. After that comes the casket, and, at a lot of cemeteries, a concrete or metal vault around it. Some people would rather not have all of that go into the ground with them.
Photo by Linh Pham on Unsplash
Cremation skips the embalming and the vault, but it has its own trade-offs. It burns fuel at very high heat, and it releases pollution into the air, including mercury from dental fillings. The U.S. Environmental Protection Agency estimates that human cremation released about 2.3 tons of mercury nationwide in 2020.
That's part of why there's so much interest in what comes next. Starting January 1, 2027, Californians will have a new choice for what happens to their bodies after death. It's called natural organic reduction, and most people know it as human composting. There's a lot of interest in it and not much plain information, so we wanted to walk through what it is and what the new law allows. We also want to cover the part that matters most for your estate plan, which is making sure the right people know your wishes in time to follow them.
Natural organic reduction, often called human composting, becomes legal in California on January 1, 2027.
What natural organic reduction is
The process places a body in a closed vessel along with plant material like straw, wood chips and alfalfa. Over a period of weeks, with air and regular turning, the body and the plant material break down together into soil. Any bone fragments that remain are ground down, much the way they are after cremation, and what's left at the end is soil that can go back to the family. Washington became the first state to allow it in 2019, and a handful of other states have followed.
Governor Newsom signed the California law, Assembly Bill 351, in September 2022, but it was set to take effect on January 1, 2027. The wait gave the state's Cemetery and Funeral Bureau time to write rules for the places that will do this work. Each one needs a state license, a permit from its local health department, and a vessel approved by the California Department of Public Health. As of this spring, the Bureau's rules were still working their way through the approval process, with January 1 as the target. That means it may take a while before there's a provider near you.
People are drawn to it for different reasons. Some like the idea of going back to the earth in a very real way, and some are thinking about the chemicals, land, and emissions that come with the other options. It isn't for everyone, and some religious groups, including the California Catholic Conference, opposed the bill. This is a personal choice, and our job is to help you ensure that the choice you make is the one that actually happens.
What happens to the soil
Under the new law, the person in charge of your remains can choose to take all of the soil, part of it, or none of it. Soil the family takes can be worked into the top layer of soil on private land with the owner's written OK. It can also go on public land with the written OK of the agency in charge, as long as no local rule bans it. It can be buried at a cemetery, too. Whatever the family doesn't take goes to a conservation area the facility works with, and the facility has to tell the family where that is.
There's a deadline built into the rules as well. Under the rules the Bureau has proposed, a facility can place unclaimed soil at a cemetery or conservation area if no one with the right to decide has asked for it within 90 days of the date of death. If you have a certain place in mind (a garden, a family property, a spot that means something to you), it helps to say so in writing and to check with the owner of that land ahead of time.
Who decides, if you don't
This is the part that surprises people. California law sets out a specific order of who controls what happens to your body after you die. It applies unless you've left written directions yourself. The order, under Health and Safety Code section 7100, is:
The agent you named in your advance health care directive
Your spouse or registered domestic partner
Your adult children, by majority if there's more than one
Your parents
Your adult siblings, by majority if there's more than one
Your next closest relatives, by majority
A conservator, if one was appointed, and last, the county public administrator
In California, the health care agent named in your advance directive has first say over your remains, ahead of a spouse or children.
Notice that the agent in your advance health care directive comes first, ahead of your spouse. Notice, too, that when your children or siblings are deciding, it's a majority vote. Say you have three adult children, and two of them aren't comfortable with a new option they've never seen. That's the decision, whatever you said once over dinner. And when family members truly can't agree, the question can end up in front of a judge, which is a hard place for anyone to be in the weeks after a loss.
A brand-new option makes all of this more important. Your family may not know it exists or know where to find a provider. They may not feel sure enough to choose it for you, even if they love you and want to honor what you wanted.
Where to put your wishes so they're found in time
You might expect the answer to be "in your will." California law does say that instructions about your remains in a will should be carried out right away, even before the will goes through probate. But wills often aren't read until well after the funeral, sometimes because they're with an attorney and sometimes because they're in a drawer nobody thinks to open for a few weeks. By then, the decision has usually been made.
There are better places, and they work best together. Your advance health care directive is one, since the person you name there already comes first in line. California's standard form also gives that person the power to decide what happens to your remains. You can add your own instructions there, and the document tends to be close at hand, because your doctor and your family usually have copies.
California also lets you put your wishes in a separate signed and dated writing. The law gives those wishes real weight, with two conditions. They have to be clear and detailed enough that there's no real question about what you meant. The cost also has to be set up ahead of time, through a trust, insurance, a prepaid contract or some other firm promise, so your family isn't paying for it out of their own pockets. Once providers are licensed, the law also lets you set up natural organic reduction for yourself directly with a facility.
Written instructions about your remains carry the most weight in California when they're clear and the cost is already arranged.
And then, tell people. Give a copy to the person you named as your agent, and talk with your family about why you chose what you chose. It might be a hard talk, but it's a lot easier to have now than for them to guess later.
If you'd like to add instructions like these to your plan, or you aren't sure who you named as your health care agent (it happens more often than you'd think), reach out to our team at Laurel Trust Law and we can look at it with you.