W­ho Controls the Dead? The Right to Make and Disposition Decisions By Tanya D. Marsh Jae Rhim Lee’s eco-friendly Infinity body of English common law that shroud and suit are infused with existed as of the Revolution. The law of is a transformative event fungi that hasten while human remains was almost exclusively with profound consequences for neutralizing toxins. Capsula Mundi is common law until the turn of the 20th the individual and her community. developing a biodegradable egg-shaped century. At that time, state legislatures Promptly following this emotionally pod that will encapsulate human began to enact laws to regulate funeral significant moment, decisions regarding remains, serving as a metaphorical directors and embalmers. Those the disposition of the corpse must be “seed” for a memorial tree planted above occupational licensing statutes make up made. In a basic sense, the process of the pod. Jevon Truesdale and Qico the bulk of the statutory law of human disposing of human remains is simply promote an environmentally friendly, remains. Funeral directors are very the solution to a practical problem. But sustainable, water-based alternative concerned about clear rules regarding the manner in which we dispose of to fire known as alkaline who has the authority to make funeral remains matters, to many people, quite hydrolysis. Progressive funeral directors and disposition decisions. State statutes a bit. A human is no longer a like Amy Cunningham and Caitlin are therefore primarily concerned with person, but neither is it an item devoid Doughty are providing education and creating that certainty, even at the of meaning. Anthropologists tell us services to allow families to take back expense of the interests of decedents that one of the key differences between as much control over remains as they and their families. There is very little humans and other animals is that we feel comfortable with, subject to legal federal law on these topics other do not easily discard the remains of our limitations. than the Federal Trade Commission’s species. Instead, we attach profound Funeral Rule, which mandates certain spiritual and emotional significance to Of course, these new frontiers in disclosures and presentation of pricing their treatment and ultimate disposition. death care are controversial. In some information. American communities, cremation is Americans, pushing back against the still controversial. As a result, there may commercialized “American way of be tension between what disposition The Rights of the Dead death,” are exploring their options in methods individuals might choose death care to an unprecedented degree. for themselves, and what choices At common law, the dead have rights. The most significant evidence of this their families and communities may Strong and longstanding social and legal is the rising popularity of cremation. be willing to support. The law limits norms permit broad freedom to direct Before the mid-1980s, the US cremation choices in various ways and provides the the disposition of our property after rate was in single digits. In 2015, for framework to mediate those disputes. death and promote respect for dying the first time, more Americans were wishes. With respect to the disposition cremated than buried. The growing of human remains, the common law interest in cremation is driven by The American Law of Human grants two rights to the deceased: (1) concerns about cost, the environmental the right to a “decent burial,” and (2) the impact of and ground burial, Remains right to direct the disposition of their and a desire for a closer connection remains. between the living and the dead. These The American legal system includes same concerns contribute to a growing two kinds of law—common law and Although the common law promises interest in home , alkaline statutory law. Statutory law is the decedents that their wishes will be hydrolysis, and green burial. collection of acts adopted by state honored, it does not provide a specific legislatures and Congress. The common mechanism for decedents to leave Socially conscious entrepreneurs, law is a framework of legal principles evidence of their disposition preferences. responding to these concerns, are derived from custom and judicial Many courts have honored the oral pushing the accepted boundaries of precedent. It is sometimes known as expression of dying wishes. The use death care. Katrina Spade and the “judge-made law.” Recognizing that of a will is more common, although it Urban Death Project are working to elected legislatures cannot possibly remains legally controversial. In some create a community compost-based address every kind of legal dispute, states, a decedent may not dispose of renewal system where human remains the common law fills in the gaps in his remains in a will because human are transformed into life-giving soil. statutory law. American common law remains are not property. In other states, is based upon and incorporates the courts have held that a decedent may 20 | VOLUME 4 NUMBER 2 | www.naturaltransitions.org leave binding disposition instructions in entered into by decedents before writing. Other states require a particular a will. death. Indeed, in four states (Georgia, form set forth in the statute. A few states Idaho, Mississippi, and Rhode Island), require a notarized declaration. Many Given the lack of clarity in the common a decedent’s wishes will be respected states require the written instrument law, and the need of funeral directors only if he or she purchased a pre-need to be witnessed by one or two people. for certainty, it is not surprising that funeral contract. Three states (Kentucky, Several provide alternative methods, the state legislatures have intervened. New Mexico, and South Carolina) permit including setting forth preferences in a Thirty-one states and the District of individuals to pre-authorize their own will, a health care power of attorney, or Columbia have statutes that provide , but not to identify any other pre-need contract. that the decedent has the general right to personal preferences. express a personal preference regarding If a person does not leave instructions the disposition of his remains. I call A key corollary in state statutory law regarding the disposition of their these rules personal preference statutes. to the personal preference statutes is remains, or if the relevant state law does There is significant variety among the absolution of liability for those not permit them to, the law establishes the personal preference statutes. One who rely upon documents that a framework to determine who may important difference is the theoretical comply with the statutory process for control the remains and make decisions basis for the statutes. Only three states memorializing preference. Although regarding disposition. (Florida, Oklahoma, and South Dakota) some states generously forgive all expressly grant decedents a statutory persons from liability for following the right to determine the disposition of written instructions of the decedent, The Rights of Next of Kin their own remains and then provide most statutes are clearly intended to Since the early 1850s the general rule a mechanism for executing that relieve only funeral professionals from in the United States has been that the right. The remaining states do not liability. Other statutes primarily aim next of kin have the right to possess expressly establish a statutory right, to give the clear legal and control remains after death, subject but implicitly assume a common law authority to resolve inconsistencies only to the wishes of the decedent. In the right by specifying a mechanism for a between a decedent’s written highly influential 1904 case of Pettigrew person to declare how they would like instructions and the contrary wishes v. Pettigrew, the Supreme Court of their remains disposed of after death. of survivors. The combination of Pennsylvania attempted to establish a At first glance, the failure to establish a release of liability for funeral directors process for sorting out conflicts among statutory right seems inconsequential. for following directives that comply surviving kin: After all, what is the purpose of the with the statutory requirements, and statutory process if not to effectuate an the emphasis of the statutes on the The result of a full examination of the express common law right or an implicit selection and prepayment of funeral subject is that there is no universal statutory or constitutional right? But goods and services are clear signals rule applicable alike to all cases, but the formulation and placement of these that the personal preference statutes each must be considered in equity statutes in their respective state codes were heavily influenced by the funeral on its own merits, having due regard strongly suggests that the point of the services industry. The result is that in to the interests of the public, the process statutes was to make it more many states, commercial consumer wishes of the decedent, and the rights difficult for survivors and estates to preferences are easier to enforce than and feelings of those entitled to be invalidate contracts for funeral goods non-commercial preferences. If, for heard by reason of relationship or and services (i.e., pre-need contracts) example, a person in Wisconsin desired association. Subject to this general to have his body prepared by result, it may be laid down: First, his religious congregation and that the paramount right is in the buried in a shroud in a (legally- surviving husband or widow, and, if permissible) backyard , the parties were living in the normal a choice that would not require relations of marriage, it will require the services of a funeral director, a very strong case to justify a court crematory authority, or cemetery in interfering with the wish of the authority, the law would say that survivor. Secondly, if there is no those wishes should be honored, surviving husband or wife, the right is but would not shield those who in the next of kin in the order of their carried them out from lawsuits relation to the decedent, as children brought by surviving next of kin. of proper age, parents, brothers and sisters, or more distant kin, modified, The personal preference statutes it may be, by circumstances of special also vary greatly in terms of the intimacy or association with the manner in which an individual decedent. is required to express his preferences. Some of the states The order of priority set forth in set a very low bar—they simply Pettigrew is the most structured that require that instructions be in www.naturaltransitions.org | NATURAL TRANSITIONS MAGAZINE | 21 the common law has accomplished. As After relatives are exhausted, the lists to understand your state’s laws and the court suggests, this individualized, generally call for an interested friend how they may allow you to express equitable approach creates uncertainty or stranger. For example, Minnesota your personal preferences, choose the that, in the event of a dispute among seeks “an adult who exhibited special disposition method that you prefer, and interested parties, can only be care and concern” for the decedent, appoint an agent if you would like one. resolved by a court. Again, given the while Missouri will take “any person An estate planning attorney in your state understandable interest of funeral or friend that will assume financial is a good resource. Some estate planning directors for certainty in identifying the responsibility.” Some states end their lists attorneys, however, are not familiar with person or persons with the legal right to with the public official charged with the intricacies of these laws. Armed with make funeral and disposition decisions, indigent relief, so that she may organize the information in this article, however, it is not surprising that state legislatures a pauper’s funeral. Only 15 states have you can ask informed questions that have intervened to establish a more statutes that obligate the government to should get you the guidance you need. orderly process. bear the expense of indigent . A You can also consult resources like number of states (including my home Final Rights by Josh Slocum and Lisa Forty-six states and the District of states of Indiana and North Carolina) Carlson, which provides an overview of Columbia have statutes that establish give authority to the funeral director the relevant laws in every state. If you a personal obligation or right with with custody of the body or “any spent a significant amount of time in respect to the disposition of human other willing person” to organize the another state, you should also follow this remains. These statutes are primarily disposition and charge the estate if kin process for that state as well. Remember focused on mediating the competing cannot be found within a few days after that the laws that apply are those of state claims between survivors. Most of the death. in which a person dies, and unless we statutes establish a priority list that never leave home, we cannot ultimately roughly tracks the hierarchy set forth in guarantee the location of our death. Pettigrew and state intestate succession The Decedent’s Right to statutes. Not surprisingly, top priority Second, if you decide that one of the is assigned to the surviving spouse. A Designate an Agent newly emerging methods of disposition few states qualify the spouse’s right appeals to you, but that the laws of your and obligation based on competency or The common law granted decedents state will cause problems or prevent you estrangement at the time of death. A few the right to dictate the disposition of from making that choice, get involved! states put domestic partners or, in the their remains, but did not expressly Write a letter to your local newspaper. case of Vermont, civil union partners give decedents the right to name the Talk to your friends. One of the main and “reciprocal beneficiaries,” on equal person who would control their remains. reasons that the funeral industry’s standing with spouses. Many states, however, have statutes concerns have trumped consumer that expressly grant decedents the right concerns in these state laws is because If a decedent left no surviving spouse to designate an agent to control their we don’t talk about death and they are or domestic partner who meets the remains. These agents generally trump happy to. If we want better laws and qualifications set forth in the statutes, all persons in the statutory priority list more choices, then we have to begin 39 states identify the children of the who would otherwise have the right and sustain a lot of conversations about decedent as the next in priority. Most to control the remains. Presumably, death. If we are unwilling to engage in states disqualify minor children, while a person would take advantage of a those conversations, then we will have a few do not. Some states permit “any” designated agent statute in order to to accept that the choices we want and surviving child to assert the right to choose a person who will be more the choices we have may be radically control the decedent’s remains, while likely than his next of kin to effectuate different. others require a majority of surviving his wishes. Thirty-seven states and children to agree before they can act. the District of Columbia have adopted Only two states—Arizona and New designated agent statutes. Related Mexico—put the parents of a decedent in statutes allow decedents to grant powers Tanya D. Marsh is a higher priority position than children of attorney with respect to health care a Professor of Law of the decedent. or similar purposes. Three states only at Wake Forest permit the designation of an agent for University School of If a decedent has no qualifying spouse, limited purposes, such as authorizing Law. She is a licensed parents, or children, 34 states then defer cremation or making anatomical gifts. attorney in the State of to siblings. As with other classes of The remaining nine states do not allow Indiana and a licensed kin, most states require the siblings to individuals to designate agents under funeral director in the be adults, but a few do not. Some states any circumstances. State of California. The author of The Law allow any sibling to assert the right, of Human Remains (2015) and Cemetery while others require a majority to agree. Law (2015), Tanya is the founder of the Planning Funeral Law Blog (http://funerallaw. After siblings, there is significant typepad.com/). divergence among the priority lists. A What can, and should, a person do few states include detailed lists of kin. with this information? First, you need

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