When sleep at last has come: Controlling the Disposition of Dead Bodies for Same-Sex Couples

Author:Jennifer E.Horan
Position:B.A., University of Notre Dame, 1995

I. Introduction II. Background III. Analysis A. Testamentary Disposition 1. "Quasi-Property" Analysis 2. Tort Analysis 3. A Modest Proposal: Market-Inalienable Property Rights B. Common Law Default Rights: In The Absence Of Express Testamentary Disposition 1. Functionalism a. Traditional formal approach b. Functionalism applied c. Functionalism furthers legislative goals d. Shortcomings of the... (see full summary)


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William B. Yeats, Easter 1916, in SELECTED POETRY 95 (A. Norman Jeffares ed., 1990) (1916).

B.A., University of Notre Dame, 1995; J.D., University of Iowa College of Law, 1999.

Unfortunately, given the numbers of battles that have been fought at bedsides and at funerals, and the many, sad lessons of the last decade dealing with the ravage of AIDS, there is no such thing as being overly prepared for challenges to or attempts to overcome the wishes and directions of those in "non-traditional" and non-marital relationships brought by family members and others.1

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I Introduction

Laws for the benefit of married couples pervade American law and society2and address topics ranging from taxes to adoption. Lesbian and gay male couples are unable to marry legally in all American states,3 and with few exceptions are thus precluded from enjoying the privileges statutorily conferred upon married couples.4

One area of law where unmarried domestic partners often fall outside statutory benefits is that of determining the proper disposition of a partner's body upon death. Under both common law and statutes, spouses have first priority in determining what will happen with the body of a deceased spouse in the absence of other directions by the decedent.5 If there is no spouse, or if the couple has separated by divorce decree, then both statutes and common law grant priority of decision-making in the descending order of the consanguinity of the deceased.6

The law creates these rules based on the presumption that either a spouse or the deceased's family members will know best what the decedent's wishes were as to disposition of the body.7 This presumption disregards the closeness Page 425 of lesbian or gay couples who are precluded by law from marrying. As a result, people in such relationships are passed over in the hierarchy of dispositional decision making. Laws based on this presumption confound the plans of the partners in homosexual couples8 who have definite wishes as to what should be done with their bodies at death.9

Furthermore, the common law recognizes no property interest in the dead body.10 Thus, some courts hold that the body cannot be bequeathed testamentarily.11 However, American courts recognize that, although a corpse is not commercial property, it is subject to a right of possession and thus is a sort of "quasi-property."12 This right vests in the survivors, however, and not in the deceased.13 Therefore, the "quasi-property" right is treated identically to common law rules that give to the surviving spouse, rather than to the decedent, the "paramount right" to determine disposition of the body.14

So what measures can a partner in a same sex couple take to ensure that her wishes are followed upon death? This Note will attempt to answer that question by looking at the alternatives. Part II will explore how traditional property law has created this unsettled area of law. The Note argues for a hybrid "market-inalienable" property right in the body.15 In the absence of that property right Page 426 or in the absence of the exercise of that right, Part HI discusses the alternative of adopting a functional approach to the word "spouse" in disposition statutes in order to include same sex partners. Finally, the last section discusses the effect of domestic partnership statutes on courts' understanding of the common law default rights. The Note argues that all three approaches are necessary to protect the last wishes of the decedent.

II Background

The common law of England did not recognize any property rights in a corpse.16 Judge Delehanty's careful and detailed opinion in In re Johnson's Estate17 suggests that this rule came from the seventeenth century philosophy that the human body was the temple of the Holy Ghost, and thus, although men left their bodies for a short time, they would require their bodies when they returned on resurrection day.18 Because men would need their bodies when they returned to the earth, giving property rights to someone else was wrong.19 Men felt entitled to a decent burial because they gave their bodies to the earth "not so much [as] a donee as a bailee."20 Thus, while burials were in the jurisdiction of ecclesiastical courts, no property right existed in a corpse.21

In the nineteenth century, many courts were forced to face the issue of whether a property right existed in the body.22 The question was framed by three distinct trends.23 First, as familial ties slackened and families grew apart, cases emerged where the widow and the "next of kin" contested for control of the body.24 Second, with the rise of medical schools and medical science, the need for bodies on which to experiment and gain knowledge increased.25 This need led to the businesses of body snatching from graveyards and unauthorized autopsies.26 Because families came to the courts complaining and seeking Page 421 damages, courts sought to recognize property rights in the body vesting in the surviving members of the family so that the families could legally request and collect damages.27 Finally, with the rise of cremation, family members who opposed cremation in favor of interment for religious reasons or otherwise, challenged the right of the deceased or others to make the decision regarding disposition.28

Although some cases allow testamentary disposition of the decedent's body,29 the method has its problems. A will generally is not probated until after the burial or cremation has already occurred.30 Unless someone is aware of and makes known the decedent's wishes, the survivors' wishes will control.31Where these wishes contradict the decedent's, several courts have refused to allow the decedent to be disinterred to carry out her wishes.32 Furthermore, directions in a will are not beyond challenge by family members as against public policy,33 and may not withstand a challenge based on the theory that Page 428 something the decedent did or said after executing the will demonstrated that the decedent had changed her mind.34 Finally, testamentary dispositions are capable of being changed or rescinded orally without the formalities that destruction of a will requires.35

If the decedent does not leave a testamentary disposition, the right to dispose of the body is controlled either by statute or common law. In the absence of a statute, most common law jurisdictions follow the rule of decision-making laid down in Pettigrew v. Pettigrew?36

First. That the paramount right is in the surviving husband or widow, and, if the parties were living in the normal relations of marriage, it . will require a very strong case to justify a court in interfering with the wish of the survivor. Secondly. If there is no surviving husband or wife, the right is in the next of kin in the order of their relation to the decedent, as children of proper age, parents, brothers and sisters, or more distant kin, modified, it may be, by circumstances of special intimacy or association with the decedent. Thirdly, [sic] How far the desires of the decedent should prevail against those of a surviving husband or wife is an open question, but as against remoter connections, such wishes especially if strongly and recently expressed, should usually prevail.37

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Furthermore, Pettigrew suggests that "[a] more distant relative, or even a friend, not connected by ties of blood, may have a superior right, under exceptional circumstances, to one nearer of kin . . . ."38 This caveat to the common law rule appears to provide grounds for a same-sex partner to control disposition; however, the "exceptional circumstances" standard is rarely applied by the courts.39

III Analysis
A Testamentary Disposition
1. "Quasi-Property" Analysis

"You don't want to invest property rights in human beings.... It is just wrong. "40

The case law regarding the rights associated with disposition of the whole human body41 is inconsistent and presents a dangerous precedent on which to rely. Testators' wishes are overcome even though they are expressed orally,42or even testamentarily in a written will.43 Express wishes as to disposition give Page 430 way to custom,44 religion,45 or to a presumption against disinterment.46 Courts have justified disregarding express wishes by holding that the right to the body is not a property right, but is merely "quasi-property,"47 or a "personal right."48Although generalizations fail to adequately characterize the myriad of reasons for failing to recognize and follow the decedent's express wishes, one clear historical explanation is that any right to control disposition does not exist in the decedent at all, but in her spouse particularly, and family generally.49

In most jurisdictions, courts do not recognize a property right in the body, but instead recognize only a "quasi-property right."50 Such a right vests in the spouse or next of kin.51 The notion of this quasi-property right is derived from the courts' understanding of what exercisable property rights may be held by the "owner" of the dead body.52 Next of kin have a right to possess the remains Page 431 for burial purposes,53 to oppose disinterment,54 to refuse autopsy and organ donation,55 and to seek damages for mutilation of the body of the deceased.56The right to possession of the body corresponds with a duty to dispose of the body. This duty is thought to be "in a sense a trust to be exercised for all having affection for the deceased...

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