CHAPTER 34-26
CUSTODY AND DISPOSITION OF BODIES AND BODY PARTS
34-26-1 Personal right to direct disposition of body and bodily parts.
34-26-2 Autopsy authorized.
34-26-3 Dissection authorized by decedent during life.
34-26-4 Dissection authorized by spouse or next of kin.
34-26-5 Dissection for purposes of inquest authorized by coroner, sheriff, or state's attorney.
34-26-6 Dissection of body of state institution inmate--Consent of next of kin required--Abandoned inmate.
34-26-7 Dissection authorized by legislative enactment.
34-26-8 Notice to medical school of unclaimed body--Requisition by and forwarding to medical school.
34-26-9 Receipt and record of bodies received by medical school.
34-26-10 Embalming and preservation of bodies by medical school--Claim by friend or relative.
34-26-11 Use of unclaimed bodies by medical school--Burial of remains.
34-26-12 Autopsies at hospitals for the mentally ill.
34-26-13 Unauthorized dissection of body as misdemeanor.
34-26-14 Right to custody of dead body--Coroner's custody pending inquest.
34-26-15 Burial within reasonable time required.
34-26-16 Repealed.
34-26-17 Right and duty of burial on failure by persons first charged--County claim against estate for expense of burial.
34-26-18 Failure to make burial as misdemeanor--Civil liability for treble expenses.
34-26-19 Provisions applicable to parts of body.
34-26-20 34-26-20, 34-26-21. Repealed by SL 2007, ch 197, § 26.
34-26-21.1 Department of Public Safety distribution of information on organ donation.
34-26-22 34-26-22 to 34-26-46. Repealed by SL 2007, ch 197, § 26.
34-26-47 Hospital protocol for identifying potential organ donors.
34-26-47.1 Discrimination in organ transplant process prohibited.
34-26-48 Short title.
34-26-49 Definitions.
34-26-50 Applicability.
34-26-51 Who may make anatomical gift before donor's death.
34-26-52 Manner of making anatomical gift before donor's death.
34-26-52.1 Organ donor designation on driver licenses and identification cards--Maintenance and removal of donor designation in department computer records.
34-26-53 Amending or revoking anatomical gift before donor's death.
34-26-54 Refusal to make anatomical gift--Effect of refusal.
34-26-55 Preclusive effect of anatomical gift, amendment, or revocation.
34-26-56 Who may make anatomical gift of decedent's body or part.
34-26-57 Manner of making, amending, or revoking anatomical gift of decedent's body or part.
34-26-58 Persons who may receive anatomical gift--Purpose of anatomical gift.
34-26-59 Search and notification.
34-26-60 Delivery of document of gift not required--Right to examine.
34-26-61 Rights and duties of procurement organization and others.
34-26-62 Coordination of procurement and use.
34-26-63 Sale or purchase of parts prohibited.
34-26-64 Other prohibited acts.
34-26-65 Immunity.
34-26-66 Law governing validity--Choice of law as to execution of document of gift--Presumption of validity.
34-26-67 Donor registry.
34-26-68 Effect of anatomical gift on advance health care directive.
34-26-69 Cooperation between coroner and procurement organization.
34-26-70 Facilitation of anatomical gift from decedent whose body is under jurisdiction of coroner.
34-26-71 Uniformity of application and construction.
34-26-72 Relation to Electronic Signatures in Global and National Commerce Act.
34-26-73 Disposition of body of deceased servicemember.
34-26-74 Contracts for disposition--Funeral--Burial.
34-26-75 Disposition of remains--Control--Right and duty.
34-26-76 Forfeiture of right.
34-26-77 Affidavit--Designation by decedent.
34-26-78 Court determination against statutory precedence--Considerations.
34-26-79 Funeral service agreement-- Disposition authorization—Reliance upon content.
34-26-80 Funeral homes--Limitation of liability--Acting in good faith.
34-26-1. Personal right to direct disposition of body and bodily parts.
Every person has the right to direct the manner in which his body or any part thereof shall be disposed of after his death, and to direct the manner in which any part of his body which becomes separated therefrom during his lifetime shall be disposed of. The provisions of §§ 34-26-4 to 34-26-7, inclusive, of §§ 34-26-17 to 34-26-19, inclusive, and of §§ 34-26-75 to 34-26-80, inclusive, do not apply where such person has given directions for the disposal of his body or any part thereof inconsistent with those provisions.
Source: PenC 1877, § 348; CL 1887, § 6549; RPenC 1903, § 353; RC 1919, § 3867; SDC 1939, § 27.1301; SL 1963, ch 152; SL 2022, ch 113, § 8.
34-26-2. Autopsy authorized.
An autopsy may be performed upon the body of a deceased person by a physician or surgeon whenever so authorized in writing, or by electronically recorded telephone communication:
(1) By the decedent during the decedent's lifetime; or
(2) By the decedent's surviving spouse; or
(3) If the surviving spouse is incompetent or not available or if there be no surviving spouse, by an adult child, parent, brother, or sister of the decedent. However, such autopsy may not be performed under a consent given as required by this subdivision if, before such autopsy is performed, any adult child or parent of the decedent objects in writing to the physician or surgeon by whom the autopsy is to be performed;
(4) By the state's attorney, county sheriff, or investigating county coroner pursuant to § 23-14-9.1.
Source: SL 1951, ch 188, § 2; SDC Supp 1960, § 34.1016; SL 1961, ch 184, § 2; SL 1981, ch 263; SL 1985, ch 191, § 5; SL 2009, ch 123, § 2.
34-26-3. Dissection authorized by decedent during life.
The right to dissect the dead body of a human being exists whenever a person lawfully gives permission for such disposal of his body or any part thereof after death.
Source: SDC 1939, § 27.1304 (5); SL 1963, ch 152.
34-26-4. Dissection authorized by spouse or next of kin.
The right to dissect the dead body of a human being exists whenever any spouse or next of kin of a deceased person, or any other person, being charged by law with the duty of burial authorizes such dissection of the dead body or any part thereof for the purpose of ascertaining the cause of death or for the purpose of scientific use or advancement of medical science.
Source: PenC 1877, § 351, subdiv 3; CL 1887, § 6552, subdiv 3; RPenC 1903, § 356, subdiv 3; RC 1919, § 3870 (3); SDC 1939, § 27.1304 (3); SL 1963, ch 152.
34-26-5. Dissection for purposes of inquest authorized by coroner, sheriff, or state's attorney.
The right to dissect the dead body of a human being exists if the death occurs under circumstances in which a coroner is authorized by law to hold an inquest upon the body or under the provisions of § 23-14-9.1, and a coroner, sheriff, or the state's attorney designated by law to order an autopsy authorizes such dissection for the purposes of the inquest.
Source: PenC 1877, § 351, subdiv 2; CL 1887, § 6552, subdiv 2; RPenC 1903, § 356, subdiv 2; RC 1919, § 3870 (2); SDC 1939, § 27.1304 (2); SL 1961, ch 131; SL 1967, ch 103, § 1; SL 1985, ch 191, § 6; SL 2009, ch 123, § 3.
34-26-6. Dissection of body of state institution inmate--Consent of next of kin required--Abandoned inmate.
The right to dissect the dead body of a human being exists whenever the person dying is at the time of death an inmate of any charitable institution supported by the State of South Dakota, and such person is at the time of death under medical treatment by physicians appointed or under supervision of said authority; provided however, that before such dissection is allowed an order shall be made by the superintendent or person having charge of such charitable institution stating that in his opinion such dissection is necessary or advisable for the purpose of obtaining knowledge of the cause of the death of such person or necessary for the treatment of others; and, before such dissection be allowed the consent of the next of kin of said deceased person shall be obtained, unless said deceased person shall have been neglected or abandoned by said kin for a period of not less than six months next preceding the time of death of such person, and when no inquiry for or in regard to said deceased person shall have been made by the next of kin of said deceased person for a period of six months next preceding the death of such person, such person shall be deemed abandoned for said period.
Source: SL 1895, ch 75, § 1; RPenC 1903, § 356, subdiv 4; RC 1919, § 3870 (4); SDC 1939, § 27.1304 (4).
34-26-7. Dissection authorized by legislative enactment.
The right to dissect the dead body of a human being exists in the cases authorized by positive enactment of the Legislature of this state.
Source: PenC 1877, § 351, subdiv 1; CL 1887, § 6552, subdiv 1; RPenC 1903, § 356, subdiv 1; RC 1919, § 3870 (1); SDC 1939, § 27.1304 (1).
34-26-8. Notice to medical school of unclaimed body--Requisition by and forwarding to medical school.
It shall be the duty of any person into whose charge may come the unclaimed dead body of a convict or other person to be buried at public expense, to give notice to the dean of the School of Medicine of the University of South Dakota within twenty-four hours after the receipt of any such body, specifying in such notice the probable cause of death; and upon the requisition of such dean he shall forward such body to the university, at its expense, within twenty-four hours of the receipt of such requisition.
Source: SL 1909, ch 278, § 1; RC 1919, § 5595; SDC 1939, § 15.1104.
34-26-9. Receipt and record of bodies received by medical school.
A receipt for any body forwarded pursuant to § 34-26-8 shall be given to the officer or person delivering the same, and the medical school of the university shall keep or cause to be kept, a record of all such bodies so received, in which shall be recorded at length all facts necessary for the identification of such bodies.
Source: SL 1909, ch 278, § 2; RC 1919, § 5595; SDC 1939, § 15.1104.
34-26-10. Embalming and preservation of bodies by medical school--Claim by friend or relative.
All bodies delivered pursuant to § 34-26-8 shall be properly embalmed, and shall be preserved for a period of not less than sixty days, during which time any personal friend or relative of the decedent, making request for such body for private interment, shall be given possession thereof.
Source: SL 1909, ch 278, § 1; RC 1919, § 5595; SDC 1939, § 15.1104.
34-26-11. Use of unclaimed bodies by medical school--Burial of remains.
Bodies delivered pursuant to § 34-26-8 unclaimed after the expiration of sixty days may be used for the promotion of medical and surgical science, and the instruction and study of physicians and students of anatomy and embalming in this state. After having served such purpose, the remains shall in all cases receive proper burial.
Source: SL 1909, ch 278, § 3; RC 1919, § 5595; SDC 1939, § 15.1104.
34-26-12. Autopsies at hospitals for the mentally ill.
Nothing contained in §§ 34-26-8 to 34-26-11, inclusive, shall preclude the officers of the state hospitals for the mentally ill from using the unclaimed remains of patients dying in such hospitals to make autopsies for pathological study.
Source: SL 1909, ch 278, § 4; RC 1919, § 5595; SDC 1939, § 15.1104.
34-26-13. Unauthorized dissection of body as misdemeanor.
Every person who makes or procures to be made any dissection of the body of a human being, except by authority of law or in pursuance of a permission given by the decedent, is guilty of a Class 1 misdemeanor.
Source: PenC 1877, § 352; CL 1887, § 6553; RPenC 1903, § 357; RC 1919, § 3871; SDC 1939, § 13.1417; SL 1977, ch 190, § 68.
34-26-14. Right to custody of dead body--Coroner's custody pending inquest.
The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it. However, in the cases in which an investigation or inquest is required by law to be held upon a dead body, by a coroner, such coroner is entitled to its custody until such inquest has been completed.
Source: PenC 1877, § 357; CL 1887, § 6558; RPenC 1903, § 362; RC 1919, § 3876; SDC 1939, § 27.1302; SL 1985, ch 191, § 7.
34-26-15. Burial within reasonable time required.
Except in the cases in which the right to dissect a dead body is expressly conferred by law, every dead body of a human being lying within this state must be decently buried within a reasonable time after the death. Nothing herein shall affect the right to remove from or carry through this state, a dead human body or parts thereof for the purpose of burying the same in another place.
Source: PenC 1877, §§ 349, 350; CL 1887, §§ 6550, 6551; RPenC 1903, §§ 354, 355; RC 1919, §§ 3868, 3869; SDC 1939, § 27.1301.
34-26-16. Repealed.
Source: PenC 1877, § 355; CL 1887, § 6556; RPenC 1903, § 360; RC 1919, § 3874; SDC 1939, § 27.1303; SL 1963, ch 153; SL 2022, ch 113, § 12.
34-26-17. Right and duty of burial on failure by persons first charged--County claim against estate for expense of burial.
In case the person upon whom the right and duty of burial is first cast by the provisions of § 34-26-75 does not make the burial within a reasonable time, the duty devolves upon the person next specified; and if all omit to act it devolves upon the county of the legal residence of the deceased, and if no such residence is known, then upon the county where the body is first found, and in all such cases the county has a legal preferred claim against the estate of the decedent for the actual expense incurred.
Source: PenC 1877, § 355, subdiv 4; CL 1887, § 6556, subdiv 4; RPenC 1903, § 360, subdiv 4; RC 1919, § 3874 (4); SDC 1939, § 27.1303 (4); SL 1963, ch 153; SL 2022, ch 113, § 9.
34-26-18. Failure to make burial as misdemeanor--Civil liability for treble expenses.
Every person upon whom the duty of making burial of the remains of a deceased person is imposed by law, who omits to perform that duty within a reasonable time, is guilty of a Class 1 misdemeanor; and, in addition to the punishment prescribed therefor, is liable to pay to the person performing the duty in his stead, treble the expenses incurred by the latter in making the burial, to be recovered in a civil action.
Source: PenC 1877, § 356; CL 1887, § 6557; RPenC 1903, § 361; RC 1919, § 3875; SDC 1939, § 13.1415; SL 1977, ch 190, § 69.
34-26-19. Provisions applicable to parts of body.
All provisions of this code requiring burial of a dead body, or punishing interference with, or injuries to a dead body, apply equally to any part of a dead body separated therefrom during lifetime, or by dissection after death, as soon as the lawful purposes of such dissection have been accomplished.
Source: PenC 1877, §§ 353, 354; CL 1887, §§ 6554, 6555; RPenC 1903, §§ 358, 359; RC 1919, §§ 3872, 3873; SDC 1939, § 27.1301.
34-26-21.1. Department of Public Safety distribution of information on organ donation.
The Department of Public Safety shall provide each person renewing or applying for a driver license or nondriver identification card an opportunity to review information about organ donation, such as information available from the organ procurement organization designated by the federal government for this state.
The department shall distribute this information:
(1) On the Department of Public Safety website;
(2) Through information mailed with each driver license and identification card renewal notice;
(3) On posters and brochures made available at each driver license exam station;
(4) Through each driver license manual published after July 1, 2013; and
(5) Through any other means the Department of Public Safety deems appropriate.
Source: SL 2001, ch 186, § 5; SL 2003, ch 272 (Ex. Ord. 03-1), § 20; SL 2013, ch 159, § 1.
34-26-47. Hospital protocol for identifying potential organ donors.
A hospital shall establish written protocols for the identification of potential human organ, eye, and tissue donors that:
(1) Assure that families of potential donors are made aware of the option of organ, eye, and tissue donation and their option to decline;
(2) Encourage discretion and sensitivity with respect to the circumstances, views, and beliefs of such families;
(3) Require that an organ procurement agency designated by the United States secretary of health and human services be notified of potential organ donors; and
(4) Require that an eye and tissue organization designated by the hospital be notified of potential eye and tissue donors.
Source: SL 1992, ch 249, § 1; SL 1995, ch 197, § 5.
34-26-47.1. Discrimination in organ transplant process prohibited.
No person may discriminate against an individual at any point in the organ transplant process, solely on the basis of an individual’s mental or physical disability, unless the disability has been determined to be medically significant to the provision of an anatomical gift.
A violation of this statute is an unfair or discriminatory practice under chapter 20-13.
Source: SL 2022, ch 112, § 1.
34-26-48. Short title.
Sections 34-26-48 to 34-26-72, inclusive, may be cited as the Revised Uniform Anatomical Gift Act.
Source: SL 2007, ch 197, § 1.
34-26-49. Definitions.
In §§ 34-26-48 to 34-26-72, inclusive:
(1) "Adult" means an individual who is at least eighteen years of age.
(2) "Agent" means an individual:
(A) Authorized to make health care decisions on the principal's behalf by a power of attorney for health care; or
(B) Expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal.
(3) "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.
(4) "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. The term does not include a blastocyst, embryo, or fetus that is the subject of an induced abortion.
(5) "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift, or another adult who exhibited special care and concern for the individual. The term does not include a person to which an anatomical gift could pass under § 34-26-58.
(6) "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver's license, identification card, or donor registry.
(7) "Donor" means an individual whose body or part is the subject of an anatomical gift.
(8) "Donor registry" means a database that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.
(9) "Driver's license" means a license or permit issued by the Department of Public Safety to operate a vehicle, whether or not conditions are attached to the license or permit.
(10) "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.
(11) "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.
(12) "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.
(13) "Identification card" means an identification card issued by the Department of Public Safety.
(14) "Know" means to have actual knowledge.
(15) "Minor" means an individual who is under eighteen years of age.
(16) "Organ procurement organization" means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.
(17) "Parent" means a parent whose parental rights have not been terminated.
(18) "Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.
(19) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(20) "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.
(21) "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.
(22) "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.
(23) "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
(24) "Recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted.
(25) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(26) "Refusal" means a record created under § 34-26-54 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.
(27) "Sign" means, with the present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with the record an electronic symbol, sound, or process.
(28) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(29) "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an enucleator.
(30) "Tissue" means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.
(31) "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.
(32) "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.
Source: SL 2007, ch 197, § 2.
34-26-50. Applicability.
Sections 34-26-48 to 34-26-72, inclusive, apply to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.
Source: SL 2007, ch 197, § 3.
34-26-51. Who may make anatomical gift before donor's death.
Subject to § 34-26-55, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in § 34-26-52 by:
(1) The donor, if the donor is an adult or if the donor is a minor and is:
(A) Emancipated; or
(B) Authorized under state law to apply for a driver's license because the donor is at least fourteen years of age, provided, that if the minor is unemancipated, a parent or guardian has consented that the organ donor indicator be placed on the minor's driver license or nondriver identification card;
(2) An agent of the donor, unless the power of attorney for health care or other record prohibits the agent from making an anatomical gift;
(3) A parent of the donor, if the donor is an unemancipated minor; or
(4) The donor's guardian.
Source: SL 2007, ch 197, § 4.
34-26-52. Manner of making anatomical gift before donor's death.
(a) A donor may make an anatomical gift:
(1) By checking a box on the driver license or identification card application authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver license or identification card. The issuance of a driver license or identification card with a donor designation completes the donation process and is effective unless the donor requests removal of the donor designation;
(2) In a will;
(3) During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or
(4) As provided in paragraph (b).
(b) A donor or other person authorized to make an anatomical gift under § 34-26-51 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and must:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(2) State that it has been signed and witnessed as provided in subdivision (1).
(c) Revocation, suspension, expiration, or cancellation of a driver license or identification card upon which an anatomical gift is indicated does not invalidate the gift.
(d) An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor' death does not invalidate the gift.
Source: SL 2007, ch 197, § 5; SL 2013, ch 159, § 2.
34-26-52.1. Organ donor designation on driver licenses and identification cards--Maintenance and removal of donor designation in department computer records.
The department shall maintain a computer record of donors and shall place the designation on each driver license or identification card subsequently issued to the donor. The department is not required to maintain the physical record of the donor card or application after issuing the driver license or identification card for the donation to be valid.
Upon receipt of a written notice to remove the donor designation the department shall remove the designation from all department computer records and shall give written notice to the holder of the driver license or identification card that the donor designation has been removed from all department computer records.
Source: SL 2013, ch 159, § 3.
34-26-53. Amending or revoking anatomical gift before donor's death.
(a) Subject to § 34-26-55, a donor or other person authorized to make an anatomical gift under § 34-26-51 may amend or revoke an anatomical gift by:
(1) A record signed by:
(A) The donor;
(B) The other person; or
(C) Subject to subsection (b), another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or
(2) A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.
(b) A record signed pursuant to subsection (a)(1)(C) must:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
(2) State that it has been signed and witnessed as provided in paragraph (1).
(c) Subject to § 34-26-55, a donor or other person authorized to make an anatomical gift under § 34-26-51 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.
(d) A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
(e) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a).
Source: SL 2007, ch 197, § 6.
34-26-54. Refusal to make anatomical gift--Effect of refusal.
(a) An individual may refuse to make an anatomical gift of the individual's body or part by:
(1) A record signed by:
(A) The individual; or
(B) Subject to subsection (b), another individual acting at the direction of the individual if the individual is physically unable to sign;
(2) The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or
(3) Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
(b) A record signed pursuant to subsection (a)(1)(B) must:
(1) Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and
(2) State that it has been signed and witnessed as provided in paragraph (1).
(c) An individual who has made a refusal may amend or revoke the refusal:
(1) In the manner provided in subsection (a) for making a refusal;
(2) By subsequently making an anatomical gift pursuant to § 34-26-52 that is inconsistent with the refusal; or
(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.
(d) Except as otherwise provided in § 34-26-55(h), in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part.
Source: SL 2007, ch 197, § 7.
34-26-55. Preclusive effect of anatomical gift, amendment, or revocation.
(a) Except as otherwise provided in subsection (g) and subject to subsection (f), in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under § 34-26-52 or an amendment to an anatomical gift of the donor's body or part under § 34-26-53.
(b) A donor's revocation of an anatomical gift of the donor's body or part under § 34-26-53 is not a refusal and does not bar another person specified in § 34-26-51 or 34-26-56 from making an anatomical gift of the donor's body or part under § 34-26-52 or 34-26-57.
(c) If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under § 34-26-52 or an amendment to an anatomical gift of the donor's body or part under § 34-26-53, another person may not make, amend, or revoke the gift of the donor's body or part under § 34-26-57.
(d) A revocation of an anatomical gift of a donor's body or part under § 34-26-53 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under § 34-26-52 or 34-26-57.
(e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.
(f) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under § 34-26-51, an anatomical gift of a part for one or more of the purposes set forth in § 34-26-51 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under § 34-26-52 or 34-26-57.
(g) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.
(h) If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal.
Source: SL 2007, ch 197, § 8.
34-26-56. Who may make anatomical gift of decedent's body or part.
(a) Subject to subsections (b) and (c) and unless barred by § 34-26-54 or § 34-26-55, an anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:
(1) An agent of the decedent at the time of death who could have made an anatomical gift under § 34-26-51(2) immediately before the decedent's death;
(2) The spouse of the decedent;
(3) Adult children of the decedent;
(4) Parents of the decedent;
(5) Adult siblings of the decedent;
(6) Adult grandchildren of the decedent;
(7) Grandparents of the decedent;
(8) An adult who exhibited special care and concern for the decedent;
(9) The persons who were acting as the guardians of the person of the decedent at the time of death; and
(10) Any other person having the authority to dispose of the decedent's body.
(b) If there is more than one member of a class listed in subsection (a) (1), (3), (4), (5), (6), (7), or (9) entitled to make an anatomical gift, an anatomical gift may be made by a member of the class unless that member or a person to which the gift may pass under § 34-26-58 knows of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.
(c) A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) is reasonably available to make or to object to the making of an anatomical gift.
Source: SL 2007, ch 197, § 9.
34-26-57. Manner of making, amending, or revoking anatomical gift of decedent's body or part.
(a) A person authorized to make an anatomical gift under § 34-26-56 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.
(b) Subject to subsection (c), an anatomical gift by a person authorized under § 34-26-56 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under § 34-26-56 may be:
(1) Amended only if a majority of the reasonably available members agree to the amending of the gift; or
(2) Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.
(c) A revocation under subsection (b) is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation.
Source: SL 2007, ch 197, § 10.
34-26-58. Persons who may receive anatomical gift--Purpose of anatomical gift.
(a) An anatomical gift may be made to the following persons named in the document of gift:
(1) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;
(2) Subject to subsection (b), an individual designated by the person making the anatomical gift if the individual is the recipient of the part;
(3) An eye bank or tissue bank.
(b) If an anatomical gift to an individual under subsection (a)(2) cannot be transplanted into the individual, the part passes in accordance with subsection (g) in the absence of an express, contrary indication by the person making the anatomical gift.
(c) If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) but identifies the purpose for which an anatomical gift may be used, the following rules apply:
(1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.
(2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.
(3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.
(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.
(d) For the purpose of subsection (c), if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.
(e) If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection (a) and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g).
(f) If a document of gift specifies only a general intent to make an anatomical gift by words such as donor, organ donor, or body donor, or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g).
(g) For purposes of subsections (b), (e), and (f) the following rules apply:
(1) If the part is an eye, the gift passes to the appropriate eye bank.
(2) If the part is tissue, the gift passes to the appropriate tissue bank.
(3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.
(h) An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under subsection (a)(2), passes to the organ procurement organization as custodian of the organ.
(i) If an anatomical gift does not pass pursuant to subsections (a) through (h) or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.
(j) A person may not accept an anatomical gift if the person knows that the gift was not effectively made under § 34-26-52 or 34-26-57 or if the person knows that the decedent made a refusal under § 34-26-54 that was not revoked. For purposes of the subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.
(k) Except as otherwise provided in subsection (a)(2), nothing in §§ 34-26-48 to 34-26-72, inclusive, affects the allocation of organs for transplantation or therapy.
Source: SL 2007, ch 197, § 11.
34-26-59. Search and notification.
(a) The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal:
(1) A law enforcement officer, firefighter, paramedic, or other emergency rescuer finding the individual; and
(2) If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital.
(b) If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (a)(1) and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital.
(c) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section.
Source: SL 2007, ch 197, § 12.
34-26-60. Delivery of document of gift not required--Right to examine.
(a) A document of gift need not be delivered during the donor's lifetime to be effective.
(b) Upon or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under § 34-26-58.
Source: SL 2007, ch 197, § 13.
34-26-61. Rights and duties of procurement organization and others.
(a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Department of Public Safety and any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
(b) A procurement organization must be allowed reasonable access to information in the records of the Department of Public Safety to ascertain whether an individual at or near death is a donor.
(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.
(d) Unless prohibited by law other than §§ 34-26-48 to 34-26-72, inclusive, at any time after a donor's death, the person to which a part passes under § 34-26-58 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
(e) Unless prohibited by law other than §§ 34-26-48 to 34-26-72, inclusive, an examination under subsection (c) or (d) may include an examination of all medical and dental records of the donor or prospective donor.
(f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.
(g) Upon referral by a hospital under subsection (a), a procurement organization shall make a reasonable search for any person listed in § 34-26-56 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
(h) Subject to §§ 34-26-58(i) and 34-26-70, the rights of the person to which a part passes under § 34-26-58 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and §§ 34-26-48 to 34-26-72, inclusive, a person that accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under § 34-26-58, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation.
(i) Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent.
(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.
Source: SL 2007, ch 197, § 14.
34-26-62. Coordination of procurement and use.
Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.
Source: SL 2007, ch 197, § 15.
34-26-63. Sale or purchase of parts prohibited.
(a) Except as otherwise provided in subsection (b), a person that for valuable consideration, knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death commits a Class 5 felony.
(b) A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part.
Source: SL 2007, ch 197, § 16.
34-26-64. Other prohibited acts.
A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a Class 5 felony.
Source: SL 2007, ch 197, § 17.
34-26-65. Immunity.
(a) A person that acts in accordance with §§ 34-26-48 to 34-26-72, inclusive, or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.
(b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift.
(c) In determining whether an anatomical gift has been made, amended, or revoked under §§ 34-26-48 to 34-26-72, inclusive, a person may rely upon representations of an individual listed in § 34-26-56(a)(2), (3), (4), (5), (6), (7), or (8) relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue.
Source: SL 2007, ch 197, § 18.
34-26-66. Law governing validity--Choice of law as to execution of document of gift--Presumption of validity.
(a) A document of gift is valid if executed in accordance with:
(1) Sections 34-26-48 to 34-26-72, inclusive;
(2) The laws of the state or country where it was executed; or
(3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.
(b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift.
(c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.
Source: SL 2007, ch 197, § 19.
34-26-67. Donor registry.
(a) The Department of Public Safety shall establish or contract for the establishment of a donor registry.
(b) The department, in partnership with the federally-designated organ procurement organization and any nonprofit tissue or eye donation agency which holds agreements with hospitals in South Dakota, shall compile, operate, maintain, and modify the registry as necessary. The registry shall include pertinent information on all South Dakotans who have registered to donate organs, tissues, and eyes and all relevant information regarding a donor's making amendment to, or revocation of, an anatomical gift in accordance with the Revised Uniform Anatomical Gift Act (§§ 34-26-48 to 34-26-72, inclusive).
(c) A donor registry must:
(1) Allow a donor or other person authorized under § 34-26-51 to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift;
(2) Allow a donor or other person online access to register as a donor, to amend an existing donor status, or remove an existing donor registration seven days a week on a twenty-four hour basis;
(3) Be accessible electronically to the federally designated organ procurement organization and any nonprofit tissue or eye donation agency which holds agreements with hospitals in South Dakota to allow the procurement organization to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; and
(4) Be accessible for purposes of subdivision (2) seven days a week on a twenty-four hour basis.
(d) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift.
(e) This section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the state. Any such registry must comply with subsections (c) and (d).
(f) The department shall collect data from the registry that is not restricted by subsection (d) and share the data with the federally-designated organ procurement organization and any nonprofit tissue or eye donation agency which holds agreements with hospitals in South Dakota to be used for the purpose of evaluating the effectiveness or educational initiatives to promote organ, tissue, and eye donation that are conducted or coordinated by organ procurement organizations, hospitals, and state agencies operating in the state.
Source: SL 2007, ch 197, § 20; SL 2013, ch 159, § 4.
34-26-68. Effect of anatomical gift on advance health care directive.
(a) In this section:
(1) "Advance health care directive" means a power of attorney for health care or a record signed by a prospective donor containing the prospective donor's direction concerning a health care decision for the prospective donor.
(2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor.
(3) "Health care decision" means any decision made regarding the health care of the prospective donor.
(b) If a prospective donor has a declaration or advance health care directive, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor, unless the declaration expressly provides to the contrary.
Source: SL 2007, ch 197, § 21.
34-26-69. Cooperation between coroner and procurement organization.
(a) A coroner shall cooperate with procurement organizations to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.
(b) If a coroner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the coroner and a post-mortem examination is going to be performed, unless the coroner denies recovery in accordance with § 34-26-70, the coroner or designee shall conduct a post-mortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift.
(c) A part may not be removed from the body of a decedent under the jurisdiction of a coroner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the coroner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection does not preclude a coroner from performing the medicolegal investigation upon the body or parts of a decedent under the jurisdiction of the coroner.
Source: SL 2007, ch 197, § 22.
34-26-70. Facilitation of anatomical gift from decedent whose body is under jurisdiction of coroner.
(a) Upon request of a procurement organization, a coroner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the coroner. If the decedent's body or part is medically suitable for transplantation, therapy, research, or education, the coroner shall release post-mortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the coroner only if relevant to transplantation or therapy.
(b) The coroner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, X rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the coroner which the coroner determines may be relevant to the investigation.
(c) A person that has any information requested by a coroner pursuant to subsection (b) shall provide that information as expeditiously as possible to allow the coroner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education.
(d) If an anatomical gift has been or might be made of a part of a decedent whose body is under the jurisdiction of the coroner and a post- mortem examination is not required, or the coroner determines that a post- mortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the coroner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research, or education.
(e) If an anatomical gift of a part from the decedent under the jurisdiction of the coroner has been or might be made, but the coroner initially believes that the recovery of the part could interfere with the post-mortem investigation into the decedent's cause or manner of death, the coroner shall consult with the procurement organization or physician or technician designated by the procurement organization about the proposed recovery. After consultation, the coroner may allow the recovery.
(f) Following the consultation under subsection (e), in the absence of mutually agreed upon protocols to resolve conflict between the coroner and the procurement organization, if the coroner intends to deny recovery of an organ for transplantation, the coroner or designee, at the request of the procurement organization, shall attend the removal procedure for the part before making a final determination not to allow the procurement organization to recover the part. During the removal procedure, the coroner or designee may allow recovery by the procurement organization to proceed, or, if the coroner or designee reasonably believes that the part may be involved in determining the decedent's cause or manner of death, deny recovery by the procurement organization.
(g) If the coroner or designee denies recovery under subsection (f), the coroner or designee shall:
(1) Explain in a record the specific reasons for not allowing recovery of the part;
(2) Include the specific reasons in the records of the coroner; and
(3) Provide a record with the specific reasons to the procurement organization.
(h) If the coroner or designee allows recovery of a part under subsection (d), (e), or (f), the procurement organization, upon request, shall cause the physician or technician who removes the part to provide the coroner with a record describing the condition of the part, a biopsy, a photograph, and any other information and observations that would assist in the post-mortem examination.
(i) If a coroner or designee is required to be present at a removal procedure under subsection (f), upon request the procurement organization requesting the recovery of the part shall reimburse the coroner or designee for the additional costs incurred in complying with subsection (f).
Source: SL 2007, ch 197, § 23.
34-26-71. Uniformity of application and construction.
In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2007, ch 197, § 24.
34-26-72. Relation to Electronic Signatures in Global and National Commerce Act.
Sections 34-26-48 to 34-26-72, inclusive, modify, limit, and supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. section 7001 et seq., but does not modify, limit or supersede section 101(a) of that act, 15 U.S.C. section 7001, or authorize electronic delivery of any of the notices described in section 103(b) of that act, 15 U.S.C. section 7003(b).
Source: SL 2007, ch 197, § 25.
34-26-73. Disposition of body of deceased servicemember.
If a decedent dies while serving in any branch of the United States armed forces, the United States reserve forces, or the national guard, as provided by 10 U.S.C. 1481 section (a)(1) to (8), inclusive, and the decedent has designated a person authorized to direct disposition of human remains on a United States Department of Defense record of emergency (DD form 93), a successor form, or an equivalent form, the duty to bury the decedent or to provide other funeral and disposition arrangements for the decedent devolves to the person designated by the decedent.
Source: SL 2014, ch 169, § 1.
34-26-74. Contracts for disposition--Funeral--Burial.
A person, who is 18 years of age or older and of sound mind, by entering into a preneed contract as defined by § 55-11-1, may direct the location, manner and conditions of disposition of the person’s remains, and the arrangements for funeral goods and services to be provided upon the person’s death. The disposition directions and funeral prearrangements that are contained in a preneed contract are not subject to cancellation or substantial revision unless the cancellation or substantial revision has been ordered by a person who the decedent has appointed in the preneed contract as the person authorized to cancel or revise the terms of the preneed contract, or unless any resources set aside to fund the preneed contract are insufficient under the terms of the preneed contract to carry out the disposition directions and funeral prearrangements contained therein.
Source: SL 2022, ch 113, § 1.
34-26-75. Disposition of remains--Control--Right and duty.
Except as provided in §§ 34-26-74 and 34-26-76, the right and the duty to control the disposition of a decedent's remains, including the location, manner, and conditions of disposition, and arrangements for the provision of funeral goods and services, vests in the following, in the order named, provided the person is eighteen years or older and is of sound mind:
(1) A person designated by the decedent, in accordance with § 34-26-77;
(2) A person designated in the federal Record of Emergency Date Form DD 93 or its successor form, by a member of the military who dies while under active-duty orders, as described in 10 U.S.C. § 1481, in effect on January 1, 2022;
(3) The decedent's spouse;
(4) The child of the decedent or the majority of the decedent's children, provided that a lesser number must suffice if they have made reasonable efforts to notify the other children of their instructions and are not aware of any opposition on the part of the majority;
(5) The parents of the decedent or one parent of the decedent, if reasonable efforts to locate the other parent have been unsuccessful;
(6) The sibling of the decedent or the majority of the decedent's siblings, provided that a lesser number must suffice if they have made reasonable efforts to notify the other siblings of their instructions and are not aware of any opposition on the part of the majority;
(7) The grandparent of the decedent or the majority of the decedent's grandparents, provided that a lesser number must suffice if they have made reasonable efforts to notify the other grandparents of their instructions and are not aware of any opposition on the part of the majority;
(8) The person named as personal representative in the decedent's last will and testament;
(9) The decedent's guardian at the time of the decedent's death, if one had been appointed;
(10) The person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution, provided if there is more than one person of the same degree, any person of that degree may control the disposition;
(11) The public officer, administrator, or employee responsible for final dispositions, if the decedent was the responsibility of the state or a political subdivision of this state; or
(12) Any other willing person, including the funeral director with custody of the body, provided the person attests that reasonable efforts have been made to contact other persons listed in this section.
For the purposes of this section, the right and the duty to control disposition includes providing authorization for a cremation.
Source: SL 2022, ch 113, § 2; SL 2023, ch 128, § 1; SL 2023, ch 129, § 1.
34-26-76. Forfeiture of right.
A person entitled under law to the right and duty of disposition forfeits that right and that duty, and the right and duty is passed on to the next qualifying person as listed in § 34-26-75, in the following circumstances:
(1) Any person charged with first- or second-degree murder or voluntary manslaughter in connection with the decedent’s death, and whose charges are known to the funeral director; provided, however that if the charges against the person are dismissed, or if the person is acquitted of the charges, the right of disposition is returned to the person;
(2) Any person who does not exercise the person's right of disposition within two days of notification of the death of decedent or within three days of the date of possession of the decedent's remains by a funeral home, whichever is earlier;
(3) If the person and the decedent are spouses and a petition to dissolve the marriage is pending at the time of decedent’s death; or
(4) Where the court, pursuant to § 34-26-78, determines that the person entitled to the right of disposition and the decedent were estranged at the time of death. For purposes of this subdivision, the term, estranged, means a physical and emotional separation from the decedent at the time of death that has existed for a period of time that clearly demonstrates an absence of due affection, trust, and regard for the decedent.
Source: SL 2022, ch 113, § 3.
34-26-77. Affidavit--Designation by decedent.
A person who is 18 years or older and of sound mind wishing to authorize another person to control the disposition of his or her remains as referenced in § 34-26-75, may execute an affidavit before a notary public in substantially the following form:
State of _______________ }
County of ______________ }
I, __________________, do hereby designate ____________________ with the right to control the disposition of my remains upon my death. I __ have/ __ have not attached specific directions concerning the disposition of my remains which the designee shall substantially comply with, provided such directions are lawful and there are sufficient resources in my estate to carry out the directions.
Subscribed and sworn to before me this ___ day of the month of _____ of the year _____.
______________________ (signature of notary public)
Source: SL 2022, ch 113, § 4.
34-26-78. Court determination against statutory precedence--Considerations.
Notwithstanding §§ 34-26-74 to 34-26-77, inclusive, the court of the county where the decedent resided may award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition, and may make decisions regarding the decedent’s remains if those sharing the right of disposition cannot agree. The following provisions apply to the court’s determination:
(1) If the persons holding the right of disposition are two or more persons with the same relationship to the decedent, and they cannot, by majority vote, make a decision regarding the disposition of the decedent’s remains, any of the persons or a funeral home with custody of the remains may file a petition asking the court to make a determination in the matter;
(2) In making a determination under this section, the court shall consider the following:
(a) The reasonableness and practicality of the proposed funeral arrangements and disposition;
(b) The degree of the personal relationship between the decedent and each of the persons claiming the right of disposition;
(c) The desires of the person or persons who are ready, able, and willing to pay the cost of the funeral arrangements and disposition;
(d) The convenience and needs of other families and friends wishing to pay respects;
(e) The desires of the decedent; and
(f) The degree to which the funeral arrangements would allow maximum participation by all wishing to pay respect;
(3) In the event of a dispute regarding the right of disposition, a funeral home is not liable for refusing to accept the remains or to inter or otherwise dispose of the remains of the decedent or complete the arrangements for the final disposition of the remains until the funeral home receives a court order or other written agreement signed by the parties in the disagreement that decides the final disposition of the remains. If the funeral home retains the remains for final disposition while the parties are in disagreement, the funeral home may embalm or refrigerate and shelter the body, or both, in order to preserve it while awaiting the final decision of the court and may add the cost of embalming and refrigeration and sheltering to the final disposition costs. If a funeral home brings an action under this section, the funeral home may add the legal fees and court costs associated with a petition under this section to the cost of final disposition. This section may not be construed to require or to impose a duty upon a funeral home to bring an action under this section. A funeral home and its employees may not be held criminally or civilly liable for choosing not to bring an action under this section; and
(4) Except to the degree it may be considered by the court under subsection (2)(c), the fact that a person has paid or agreed to pay for all or part of the funeral arrangements and final disposition does not give that person a greater right to the right of disposition than the person would otherwise have. The personal representative of the estate of the decedent does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the person would otherwise have.
Source: SL 2022, ch 113, § 5.
34-26-79. Funeral service agreement-- Disposition authorization—Reliance upon content.
Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition is deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated, or otherwise disposed of, and the party’s authority to order the disposition. A funeral home shall have the right to rely on the funeral service contract or authorization and shall have the authority to carry out the instructions of the person or persons whom the funeral home reasonably believes holds the right of disposition. The funeral home shall have no responsibility to contact or to independently investigate the existence of any next-of-kin or relative of the decedent. If there is more than one person in a class who is equal in priority and the funeral home has no knowledge of any objection by other members of such class, the funeral home shall be entitled to rely on and act according to the instructions of the first such person in the class to make funeral and disposition arrangements; provided that no other person in such class objects in writing to the funeral home.
Source: SL 2022, ch 113, § 6.
34-26-80. Funeral homes--Limitation of liability--Acting in good faith.
No funeral home or funeral director who relies in good faith upon the instructions of an individual claiming the right of disposition shall be subject to criminal or civil liability or subject to disciplinary action for carrying out the disposition of the remains in accordance with the instructions.
Source: SL 2022, ch 113, § 7.
