Victims in Life, Victims in Death—Keeping Burial
Rights Out of the Hands of Slayers
It often takes tragedy to bring about change. In 2009, Constance
Shepherd was brutally murdered at the hands of her husband,
Stephen Shepherd.1 Her body was found in their New York home—
her throat slashed by a medieval-style sword.2 While still grieving
the loss of their loved one, Constance’s surviving family members
were victimized yet again:3 As Constance’s surviving spouse,
Stephen Shepherd had the sole right under New York law to control
the disposition of her remains,4 despite being charged with her
murder.5 Contrary to her family’s wishes,6 Shepherd left
Constance’s body in the morgue for more than a month before
having his attorney cremate and bury her remains near his favorite
fishing spot, hundreds of miles away from her family and home in
Copyright 2013, by MINIA E. BREMENSTUL.
1. Dean G. Skelos, Senate Passes Bill to Protect Remains of Crime Victims,
NY STATE SENATE (May 14, 2012), http://www.nysenate.gov/press-release/senate
-passes-bill-pr otect-remains-crime- victims-0.
2. Rich Newberg, Man Pleads Guilty in Death of His Wife, WIVB.COM
(Oct. 13, 2009, 7:17 PM), http://www.wivb.com/dpp/news/crime/Man_pleads
3. “Homicide is a crime with more than one victim.” OFFICE FOR VIC TIMS OF
CRIME, U.S. DEP’T OF JUSTICE, FIRST RESPONSE TO VICTIMS OF CRIME: A
GUIDEBOOK FOR LAW ENFORCEMENT OFFICERS 53 (2010), available at
(referring to survivors of homicide victims).
4. “Disposition” or “final disposition” refers to the lawful disposing of a
dead body, which may include burial, interment, cremation, anatomical donation,
or other authorized disposition. See ARK. CODE ANN. § 20-17-102(a)(2)(C)
(Westlaw 2013); FLA. STAT. ANN. § 497.005(32) (Westlaw 2013); N.Y. PUB.
HEALTH LAW § 4201 (McKinney 2013).
5. Skelos, supra note 1. Shepherd pleaded guilty to manslaughter and agreed
to a 21-year sentence. Newberg, supra note 2.
6. Constance’s family objected to Shepherd’s burying of her cremated
remains on Mount Tremper at a Buddhist temple in the Catskills and believed that
his choice was intentionally disrespectful. See Tom Precious, State Bill Would
Deny Killer Control of Victim Burial, THE BUFFALO NEWS, May 15, 2012,
available at 2012 WLNR 10272924. Conversely, Shepherd indicated to his
attorney that it would have been his dead wife’s wish because they were both
practicing Buddhists. Id.
7. See Michael Gormley, NY Seeks to Deny Murderers Spousal Burial
Rights, ASSOCIATED PRESS (May 14, 2012), available at http://bigstory.ap.org
/content/ny-seeks-deny-murderers-spousal-burial-rights; Michael Regan, Loophole
Closed Allowing Control of Victim’s Body, TONAWANDA NEWS, Oct. 26, 2012,
214 LOUISIANA LAW REVIEW [Vol. 74
The public outcry over Constance Shepherd’s story and other
similar tragedies prompted the New York State Legislature to
amend its disposition of remains law in order to prevent murderers
from controlling the disposition of their victims’ remains.8 The law
prohibits any person who, “at the time of the decedent’s death, was
the subject of an order of protection protecting the decedent; or . . .
[who] has been arrested or charged with any crime . . . allegedly
causally related to the death of the decedent” from having “the right
to control the disposition of the remains of the decedent.”9 While
New York has closed its statutory gap that allowed “slayers”10 to
control the burial of their victims, many states have not yet remedied
this alarming oversight in the law.11 Consequently, in some states,
murderers like Stephen Shepherd continue to have the ability to
control the location, timing, and method of the disposition of their
Nearly all states have “slayer statutes” to ensure that slayers may
not inherit property or receive life insurance benefits as a result of
their criminal acts,12 but many states have not extended this
prohibition to the power of slayers to legally dispose of their
victims’ bodies.13 Although all states have enacted statutory
8. See New York to Deny Burial Right of Convicted Murders, THE DAILY
NEWS, June 12, 2012, available at 2012 WLNR 12776024. Another case
prompted action in New York: a murderer who beheaded his wife was able to
control the timing and location of her burial. Gormley, supra note 7. A week
before she was killed, the mother of three had filed for divorce. Id.
9. N.Y. PUB. HEALTH LAW § 4201 (amended in 2012 to include a provision
calling for forfeiture when a person is arrested or charged with the decedent’s
10. Throughout this Comment, the term “s layer” is used in a broader sense
than the word “murderer.” A person who commits murder is one who kills another
with malice aforethought. BLACK’S LAW DICT IONARY 1114 (9th ed. 2009).
“Slayer” as used in this Comment refers to a person who commits an offense that
precludes the person from inheriting from his or her victim under the state’s slayer
statute. Slayer is generally defined as “a person who kills another, or who
participates in killing another, by an act that is felonious, intentional, and without
legal excuse or justification.” RESTATEMENT (THIRD) OF RESTITUTION & UNJUST
ENRICHMENT § 45 (2011). However, the scope of offenses included in slayer
statutes varies by jurisdiction. See 95 C.J.S. Wills § 99 (Westlaw 2013). For
example, many statutes also encompass voluntary manslaughter, and some even
reach negligent homicide. See id.; see also infra note 180 and accompanying text.
11. See infra note 91 and accompanying text.
12 . The slayer rule “has been legislated in most U.S. jurisdictions and in the
few others it has been applied by common-law doctrines.” Nili Cohen, The Slayer
Rule, 92 B.U. L. REV. 793, 797 (2012).
13. See infra note 91.
2013] COMMENT 215
guidance concerning the order and priority of persons with the right
to control final disposition,14 nearly half lack forfeiture provisions15
to account for situations in which one of those individuals is
criminally responsible for the decedent’s death.16 Furthermore, even
state statutes that do have forfeiture provisions often do not provide
adequate coverage. First, some provisions do not encompass all
victim–offender relationships; several address only certain
categories of familial homicides, like spousal murders, while others
do not provide for forfeiture if the deceased specifically designated
the slayer to act as his or her agent for disposition.17 Second, many
provisions only contemplate forfeiture once criminal charges have
been brought, ignoring the timing considerations involved with
making disposition decisions as well as establishing probable cause
for an arrest.18 Third, statutes often do not provide an individual
who has forfeited the right of disposition the opportunity to
challenge the forfeiture in a timely manner.19
States must ensure that disposition rights are not granted to
slayers by virtue of poorly crafted disposition of remains statutes.20
Instead, these statutes should require forfeiture for any person
granted the right to control disposition, whether by designation or by
law, who is criminally responsible for the decedent’s death.
Forfeiture is essential to protect not only a decedent from being
victimized a second time by his or her slayer but also the victim’s
grieving survivors from being rendered powerless and unable to
control the final resting place of their loved one. As long as an
individual subject to forfeiture is given notice and an opportunity to
be heard when forfeiture takes place, the rights of all parties—the
accused, the surviving family members, and the victim—will be
14. See infra notes 91, 137.
15. A forfeiture provision is a clause in a statute “stating that, under certain
circumstances,” a person must lose “a right, privilege, or property.” BLACK’S LAW
DICTION ARY, supra note 10, at 722 (defining “forfeiture” and “forfeiture clause”).
16. See infra note 91.
17. See discussio n infra Part II.B.2.a.
18. See discussio n infra Part II.B.2.a.
19. See discussio n infra Part II.B.2.b.
20. Throughout th is Comment, the author refers to statutes governing the
disposition of remains as “dispositio n of remains statutes.” Such statutes have also
been referred to as “bodily remains statutes,” “sepulture statutes,” or “priority of
decision laws.” See, e.g., Tracie M. Kester, Note, Uniform Acts–Can the Dead
Hand Control the Dead Body? The Case for A Uniform Bodily Remains Law, 29
W. NEW ENG. L. REV. 571 (2007) (using the phrases “bodily remains statutes” and
“sepulture statutes”); Ann M. Murphy, Please Don’t Bury Me Down in That Cold
Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains,
15 ELDER L.J. 381 (2007) (using the phrase “priority of decision laws”).