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Ted Williams: Is He Headed for the Dugout or the Deep Freeze?
Property Rights in a Dead Body Resurrected
by
Alexander A. Bove, Jr., Esq. and Melissa Langa, Esq.
[Originally published in Massachusetts Lawyers Weekly
August 19, 2002]
The uproar and monumental press coverage over the disposition of Ted William's
body have caused the resurrection of some basic legal questions that even estate
"experts" have not clearly addressed, the two most significant being: (1) Does a person
have the legal right to direct the disposition of his body?, and (2) In the case of a
discrepancy between such dispositive provisions in the person's Last Will and a
subsequent change of mind, which will control?
Newspapers across the country from the Boston Globe to the Los Angeles Times
(no comment on the New York papers and those damn Yankees) have reported and
speculated on whether Ted will remain frozen in Arizona at the Alcor cryonics
warehouse or will be returned to Florida to be cremated, and his "cremains" scattered off
the Florida Keys. It is now common knowledge that Ted's Will directed the cremation of
his body. It is also common knowledge that John Henry, one of Ted's children (and thus
a "next of kin"), and Ted's daughter, Claudia, believe that their father wanted his body to
be frozen, purportedly so that he might be reunited in the future with them. At the same
time, Bobby Jo (another of Ted's "next of kin" but one left out in the cold) believes the
Page 2
2
Will clearly reflects Ted's last wishes and should be honored. According to Alcor
information, either the whole body could remain frozen, or they have a special, reduced
price for just the head (what they euphemistically refer to as "neuro-suspension",
something we authors frequently experience). Does this provide a way that both sides
could be satisfied? Is this a case for King Solomon to decide?
Under early English common law, a decedent had no "property" rights in his body
and could not direct the disposal of his corpse, Williams v. Williams (coincidence?), 20
Ch. D. 659 (1882), and for a while many states in this country followed that rule. This
did not last long, however, and many if not most states now recognize the right of an
individual to dispose of his body by Will or other document. See e.g., Mass. G. L. c. 113,
§ 8 et seq. (Uniform Anatomical Gift Act); Ariz. Rev. Stat. Ann. §32-1365.01 ("A legally
competent adult may prepare a written statement directing the cremation or other lawful
disposition of ...[his] own remains....The written statement may but need not be part of
the legally competent adult's Will."); Fla Stat. 470.002(18) (directing funeral homes to
give first priority to a decedent's written statements).
This change of attitude does not mean, however, that actual property rights, as we
understand them in a commercial sense, exist in a dead body. For example, a court most
likely would not permit a person to direct that his corpse be sold to the highest bidding
biomedical research facility. Mass. G. L. ch. 272, §72 sets forth as a "crime against
morality and good order" the buying, selling, or possessing of dead bodies. Florida and
most states have the same prohibition. Fla Stat. 872.01 ("Whoever buys, sells, or has in
his or her possession for the purpose of buying or selling or trafficking in the dead body
of any human being shall be guilty of a misdemeanor of the first degree."). Similarly, the
body of a deceased person may not be seized by a sheriff on execution. Mass. G. L. ch.
272, §70. Nor does the decedent's estate have a claim against one that mutilates the
corpse; such claims lie with the person who has the right to the possession of the body for
burial purposes. Rubianogroot v. Swanson, 2001 Mass. Super. Lexis 244 (2001); Rather,
such "rights", to the extent they are recognized and enforced by the courts, are intended
to give the decedent, largely out of respect for the dead, the opportunity to state and have
Page 3
3
carried out his reasonable requests for the disposition of his body. Nevertheless, it is
quite possible for the decedent's purported wishes to be disregarded by the person
entitled to the right to possession of the body for the purpose of the burial or other legal
disposition of the body.
In any event, whether it is the wish of the deceased or those of the spouse or other
relatives regarding the disposition of the body, the law imposes certain limitations. First,
there are the limitations imposed by public policy, so that a requested disposition will not
be enforced if, in the eyes of a court, it violates basic rules of an orderly society. For
example, in Estate of Meksras, Pa. D. & C.2d 371 (1974), a decedent directed that she be
buried wearing her valuable jewelry. The court declared the provision void, stating: "If a
practice is developed in our state to foster the burying of valuables with a deceased, our
cemeteries, like the tombs of the pharaohs, will be ravaged and violated." Thus, a request
which encourages grave robbing would be disregarded. Second, there are limitations
imposed by basic rules of human decency and civilization. Mass G. L. c. 114, §43M
(....every dead body of a human being dying within the Commonwealth ... shall be
decently buried
, entombed in a mausoleum, vault or tomb, or cremated within a
reasonable time after death.")(emphasis supplied). Thus, provisions that subject the body
to profanation, ridicule, or disrespect would also be disregarded by the court. In other
words, a six foot six inch tall person could direct that he be buried standing up but not in
a grave that is only six feet deep.
In Massachusetts, the right to possession of the body and the duty of burial rests
first in the surviving spouse, and second in the next-of-kin; not in the executor or
administrator. Vaughan v. Vaughan, 294 Mass 164 (1936); Burney v. Children's
Hospital, 169 Mass 57 (1897). This is sensible as a practical matter, as the decedent's
body is typically long disposed of by the time the executor or administrator is appointed.
Thus, the stated directions, if any, by the deceased in his Will would in effect be honored
(if they are to be honored) long before the Will is probated, which illustrates another
issue. The decedent's wishes as to the disposition of his body do not constitute a
disposition of "property" at death as contemplated by the law of Wills, and since, as
Page 4
4
noted, a direction in a Will is unlikely to be legally approved (probated) in time to
humanely carry out the deceased's wishes, why must it be in the Will at all? It would
seem that any credible and reliable evidence of the decedent's wishes should be respected
by a court, whether or not contained in the Will. In a case in which there was no
statement from the decedent, the Supreme Judicial Court has stated that "In the absence
of a direction from the decedent, a surviving spouse, or failing such a spouse (as here)
then the decedent's next-of-kin, have the right to `possession ` of the body so that they
may dispose of it for burial according to their wishes." Stackhouse v. Todisco, 370 Mass.
860 (1976). The concept that a decedent's wishes should be upheld when known is part
of the "sacred trust" bestowed upon all that "were allied to the deceased." Larson v.
Chase, 50 N.W. 238 (Minn. 1891).
But what happens when the next-of-kin disagree, and there are conflicting
documents? In Ted's case, we have a Will which clearly states his wishes, and
supposedly, we have hand written evidence that may demonstrate a subsequent change of
mind by Ted, suggesting that his body be frozen. Assuming both are valid, will the later
document control? It appears that it can and probably will, absent public policy and
decency issues discussed above. It has been held that where a testator, after having
specifically provided in his Will for the disposition of his body, subsequently
demonstrated that he had changed his mind about such disposition, courts have been quite
willing to disregard the testamentary provisions. See 7 A.L.R. 3d 747 sec. 3(b). This
makes sense when we realize that it is not title to property which we are concerned about,
but the intent of the decedent.
All of this seems to indicate that the answer to the question of whether a person
has the right to direct the disposition of his body, is an unequivocal maybe. One author
on the subject stated: "In the absence of specific statutory authority, a person has, at best,
a very qualified assurance that the testamentary disposition he makes of his own body
will be fulfilled. Jackson, Law of Cadavers at 42 (2d Ed.). We know that public policy
and decency concerns can over-ride a decedent's wishes. But when these over-riding
issues are not present, a decedent's wishes should control. In Florida, the jurisdiction in
Page 5
5
question, the court in Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Florida District
Ct. App. 3d District 1997), ordered a cremation in accordance with the deceased's
wishes, against the objections of the personal representative.
Assume for a moment, however, that the handwritten statement is authentic. We
would then be faced with the question of dealing with the "perpetual" maintenance of
Ted's body in a cryonic state. This question, although it appears to be one directly
relating to disposition of the body, may be far more complex, and may in fact be
governed in part by public policy issues, and part by estate administration issues. The
Arizona facility, Alcor Life Extension Foundation, charges $120,000 for full body
cryonic suspension. See FAQs at
www.alcor.org
. Unless Ted funded this contract with
some huge payment while he was alive (Alcor suggests using an insurance policy, the
proceeds of which, by the way, would be includible and therefore fully taxable in Ted's
estate, unless Ted had a good estate planner), under what authority could the court allow
the estate to expend these funds, and query whether such expense would be deductible on
Ted's estate tax return under Internal Revenue Code §2053 (expenses of administration)?
Further, Alcor states that its "Irrevocable Patient Care Trust", funded with $70,000 per
whole body "patient", will more than cover the costs projected for the duration of cryonic
suspension (even for 406 years or more?). If Alcor's financial optimism is misplaced,
would the court order money to be set aside out of the estate to cover the continued costs?
If so, we might see things really heating up down there in Florida. And if that wouldn't
give the family of a cryonics candidate cold feet, what about this: If, against all expert
medical opinion and predictions, Ted was actually revived, could he then recover what
was left of his property? Who would go to bat for his great grandchildren and great great
grandchildren who inherited the money? When does that statute of limitations run? Well,
if Ted did come back, at least he could set the record straight as to his true wishes, and
after all those years in cold storage, cremation might be a welcome change of climate.
Copyright 2002 by Alexander A. Bove, Jr. and Melissa Langa. All rights reserved.
Ted Williams: Is He Headed for the Dugout or the Deep Freeze?
Property Rights in a Dead Body Resurrected
by
Alexander A. Bove, Jr., Esq. and Melissa Langa, Esq.
[Originally published in Massachusetts Lawyers Weekly
August 19, 2002]
The uproar and monumental press coverage over the disposition of Ted William's
body have caused the resurrection of some basic legal questions that even estate
"experts" have not clearly addressed, the two most significant being: (1) Does a person
have the legal right to direct the disposition of his body?, and (2) In the case of a
discrepancy between such dispositive provisions in the person's Last Will and a
subsequent change of mind, which will control?
Newspapers across the country from the Boston Globe to the Los Angeles Times
(no comment on the New York papers and those damn Yankees) have reported and
speculated on whether Ted will remain frozen in Arizona at the Alcor cryonics
warehouse or will be returned to Florida to be cremated, and his "cremains" scattered off
the Florida Keys. It is now common knowledge that Ted's Will directed the cremation of
his body. It is also common knowledge that John Henry, one of Ted's children (and thus
a "next of kin"), and Ted's daughter, Claudia, believe that their father wanted his body to
be frozen, purportedly so that he might be reunited in the future with them. At the same
time, Bobby Jo (another of Ted's "next of kin" but one left out in the cold) believes the
Page 2
2
Will clearly reflects Ted's last wishes and should be honored. According to Alcor
information, either the whole body could remain frozen, or they have a special, reduced
price for just the head (what they euphemistically refer to as "neuro-suspension",
something we authors frequently experience). Does this provide a way that both sides
could be satisfied? Is this a case for King Solomon to decide?
Under early English common law, a decedent had no "property" rights in his body
and could not direct the disposal of his corpse, Williams v. Williams (coincidence?), 20
Ch. D. 659 (1882), and for a while many states in this country followed that rule. This
did not last long, however, and many if not most states now recognize the right of an
individual to dispose of his body by Will or other document. See e.g., Mass. G. L. c. 113,
§ 8 et seq. (Uniform Anatomical Gift Act); Ariz. Rev. Stat. Ann. §32-1365.01 ("A legally
competent adult may prepare a written statement directing the cremation or other lawful
disposition of ...[his] own remains....The written statement may but need not be part of
the legally competent adult's Will."); Fla Stat. 470.002(18) (directing funeral homes to
give first priority to a decedent's written statements).
This change of attitude does not mean, however, that actual property rights, as we
understand them in a commercial sense, exist in a dead body. For example, a court most
likely would not permit a person to direct that his corpse be sold to the highest bidding
biomedical research facility. Mass. G. L. ch. 272, §72 sets forth as a "crime against
morality and good order" the buying, selling, or possessing of dead bodies. Florida and
most states have the same prohibition. Fla Stat. 872.01 ("Whoever buys, sells, or has in
his or her possession for the purpose of buying or selling or trafficking in the dead body
of any human being shall be guilty of a misdemeanor of the first degree."). Similarly, the
body of a deceased person may not be seized by a sheriff on execution. Mass. G. L. ch.
272, §70. Nor does the decedent's estate have a claim against one that mutilates the
corpse; such claims lie with the person who has the right to the possession of the body for
burial purposes. Rubianogroot v. Swanson, 2001 Mass. Super. Lexis 244 (2001); Rather,
such "rights", to the extent they are recognized and enforced by the courts, are intended
to give the decedent, largely out of respect for the dead, the opportunity to state and have
Page 3
3
carried out his reasonable requests for the disposition of his body. Nevertheless, it is
quite possible for the decedent's purported wishes to be disregarded by the person
entitled to the right to possession of the body for the purpose of the burial or other legal
disposition of the body.
In any event, whether it is the wish of the deceased or those of the spouse or other
relatives regarding the disposition of the body, the law imposes certain limitations. First,
there are the limitations imposed by public policy, so that a requested disposition will not
be enforced if, in the eyes of a court, it violates basic rules of an orderly society. For
example, in Estate of Meksras, Pa. D. & C.2d 371 (1974), a decedent directed that she be
buried wearing her valuable jewelry. The court declared the provision void, stating: "If a
practice is developed in our state to foster the burying of valuables with a deceased, our
cemeteries, like the tombs of the pharaohs, will be ravaged and violated." Thus, a request
which encourages grave robbing would be disregarded. Second, there are limitations
imposed by basic rules of human decency and civilization. Mass G. L. c. 114, §43M
(....every dead body of a human being dying within the Commonwealth ... shall be
decently buried
, entombed in a mausoleum, vault or tomb, or cremated within a
reasonable time after death.")(emphasis supplied). Thus, provisions that subject the body
to profanation, ridicule, or disrespect would also be disregarded by the court. In other
words, a six foot six inch tall person could direct that he be buried standing up but not in
a grave that is only six feet deep.
In Massachusetts, the right to possession of the body and the duty of burial rests
first in the surviving spouse, and second in the next-of-kin; not in the executor or
administrator. Vaughan v. Vaughan, 294 Mass 164 (1936); Burney v. Children's
Hospital, 169 Mass 57 (1897). This is sensible as a practical matter, as the decedent's
body is typically long disposed of by the time the executor or administrator is appointed.
Thus, the stated directions, if any, by the deceased in his Will would in effect be honored
(if they are to be honored) long before the Will is probated, which illustrates another
issue. The decedent's wishes as to the disposition of his body do not constitute a
disposition of "property" at death as contemplated by the law of Wills, and since, as
Page 4
4
noted, a direction in a Will is unlikely to be legally approved (probated) in time to
humanely carry out the deceased's wishes, why must it be in the Will at all? It would
seem that any credible and reliable evidence of the decedent's wishes should be respected
by a court, whether or not contained in the Will. In a case in which there was no
statement from the decedent, the Supreme Judicial Court has stated that "In the absence
of a direction from the decedent, a surviving spouse, or failing such a spouse (as here)
then the decedent's next-of-kin, have the right to `possession ` of the body so that they
may dispose of it for burial according to their wishes." Stackhouse v. Todisco, 370 Mass.
860 (1976). The concept that a decedent's wishes should be upheld when known is part
of the "sacred trust" bestowed upon all that "were allied to the deceased." Larson v.
Chase, 50 N.W. 238 (Minn. 1891).
But what happens when the next-of-kin disagree, and there are conflicting
documents? In Ted's case, we have a Will which clearly states his wishes, and
supposedly, we have hand written evidence that may demonstrate a subsequent change of
mind by Ted, suggesting that his body be frozen. Assuming both are valid, will the later
document control? It appears that it can and probably will, absent public policy and
decency issues discussed above. It has been held that where a testator, after having
specifically provided in his Will for the disposition of his body, subsequently
demonstrated that he had changed his mind about such disposition, courts have been quite
willing to disregard the testamentary provisions. See 7 A.L.R. 3d 747 sec. 3(b). This
makes sense when we realize that it is not title to property which we are concerned about,
but the intent of the decedent.
All of this seems to indicate that the answer to the question of whether a person
has the right to direct the disposition of his body, is an unequivocal maybe. One author
on the subject stated: "In the absence of specific statutory authority, a person has, at best,
a very qualified assurance that the testamentary disposition he makes of his own body
will be fulfilled. Jackson, Law of Cadavers at 42 (2d Ed.). We know that public policy
and decency concerns can over-ride a decedent's wishes. But when these over-riding
issues are not present, a decedent's wishes should control. In Florida, the jurisdiction in
Page 5
5
question, the court in Kasmer v. Guardianship of Limner, 697 So. 2d 220 (Florida District
Ct. App. 3d District 1997), ordered a cremation in accordance with the deceased's
wishes, against the objections of the personal representative.
Assume for a moment, however, that the handwritten statement is authentic. We
would then be faced with the question of dealing with the "perpetual" maintenance of
Ted's body in a cryonic state. This question, although it appears to be one directly
relating to disposition of the body, may be far more complex, and may in fact be
governed in part by public policy issues, and part by estate administration issues. The
Arizona facility, Alcor Life Extension Foundation, charges $120,000 for full body
cryonic suspension. See FAQs at
www.alcor.org
. Unless Ted funded this contract with
some huge payment while he was alive (Alcor suggests using an insurance policy, the
proceeds of which, by the way, would be includible and therefore fully taxable in Ted's
estate, unless Ted had a good estate planner), under what authority could the court allow
the estate to expend these funds, and query whether such expense would be deductible on
Ted's estate tax return under Internal Revenue Code §2053 (expenses of administration)?
Further, Alcor states that its "Irrevocable Patient Care Trust", funded with $70,000 per
whole body "patient", will more than cover the costs projected for the duration of cryonic
suspension (even for 406 years or more?). If Alcor's financial optimism is misplaced,
would the court order money to be set aside out of the estate to cover the continued costs?
If so, we might see things really heating up down there in Florida. And if that wouldn't
give the family of a cryonics candidate cold feet, what about this: If, against all expert
medical opinion and predictions, Ted was actually revived, could he then recover what
was left of his property? Who would go to bat for his great grandchildren and great great
grandchildren who inherited the money? When does that statute of limitations run? Well,
if Ted did come back, at least he could set the record straight as to his true wishes, and
after all those years in cold storage, cremation might be a welcome change of climate.
Copyright 2002 by Alexander A. Bove, Jr. and Melissa Langa. All rights reserved.
slightly off-topic
Date: 2002-12-10 04:32 pm (UTC)interested in knowing anything about Alcor.
She works there!
no subject
Date: 2002-12-10 09:11 pm (UTC)no subject
Date: 2002-12-10 07:43 pm (UTC)nice to be here
:)
no subject
Date: 2002-12-10 09:11 pm (UTC)no subject
Date: 2002-12-11 06:45 am (UTC)http://makeashorterlink.com/?B25A25BB2