How does the law treat human remains? It’s not a common topic of conversation, and the answer may be surprising. In most situations, you have more control over what happens to your property after you die than you have over the final destination of your own body.
American law on this topic, as in other areas, is based on English common law. Historically, under English common law, there were no property interests in corpses. The reason for the rule can often be illustrative. If there were property interests in corpses, then those property interests could allow people to bring the dead with them from town to town and repeatedly exhume loved ones. Certainly, the lawmakers in Britain wanted to avoid this gruesome prospect. Eventually, under American common law, a quasi-property right was established.
Essentially, the “next of kin” have a limited property right in the remains of a deceased person, but only for the purpose of burying or otherwise disposing of the body.
Who exactly qualifies as “next of kin?” That question has spawned its share of lawsuits. Perhaps the most memorable example from the recent past was the fight over where to bury Anna Nicole Smith’s body. In that case, Howard K. Stern, her long-time companion, argued, as executor of her will, that she should be buried in the Bahamas, next to the grave of her son. Smith’s estranged mother, on the other hand, argued that she was next of kin and thus had the right to bury Smith’s body in Texas, where she grew up. Ultimately, the case was resolved with Anna Nicole Smith’s body being buried in the Bahamas, but only after the fight over who should have control of her remains raged for nearly a month.
What’s the bottom line when it comes to control of a decedent’s remains? Preference is generally given to the decedent’s wishes. However, no one has an absolute right to dictate what will happen to his or her own remains. Because of their quasi-property rights, the decedent’s next-of-kin can overrule the decedent’s wishes and make the final decision; unless, of course, the court denies those wishes based on public health concerns or the norms of society.
What do you think? How should the law develop in this area?
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
6050 Santo Rd., Ste. 240
San Diego, CA 92124