Books

How Dead People Have More Rights Than You Do!

The new book 'Immortality and the Law of the Dead' explores America's own strange approach to the legal powers of the deceased.

The following is reprinted from Immortality and the Law of the Dead: The Rising Power of the American Dead, by Ray D. Madoff, with permission of Yale University Press, New Haven, CT.

In this age in which more information is known and easily accessible by the masses than ever before in history, there is one subject about which we are as ignorant as our forebears, and that is death. For most of us, our ignorance about death is a fact of life. We either accept death’s mystery or ignore its inevitability. However, our legal system cannot afford these philosophical or psychological luxuries. The law is constantly being asked to address real issues involving the dead: Is a person harmed when someone tells lies about her after death? To what extent does a person have an interest in what happens to his body after death? What about his property? For each of these questions--and more--the law has been required to provide answers.

American law has taken its own uniquely American approach to the law of the dead, colored in recent years by the distinct imprint of the baby boom generation. This generation is in the process of becoming the largest population of elderly in the history of the United States. Just as they have left their mark on other areas of American society at every stage of their lives, the baby boomers are in the process of transforming the legal landscape to claim more of the country’s riches for themselves—the future dead of America.

Law of the Dead—It’s Everywhere

At one time, dead bodies were primarily something to be buried. Legal questions regarding dead bodies were generally limited to determining who among the living was responsible for interment. Today, we are presented with many more options than past generations regarding the final use and disposition of our bodies. This range of possibilities raises many more legal questions. Can people make legally enforceable decisions about whether their bodies are buried or cremated, dissected for scientific study, harvested for organ transplants or plasticized for display in travelling exhibits?

More issues are raised by reproductive matter. It is now a relatively simple procedure to exhume sperm from a dead man. In the near future it may be possible to remove viable eggs from dead women. Do people have a legal right to control whether their eggs or sperm are exhumed after death for posthumous child production? If children are posthumously conceived, should they be treated as offspring of the deceased “parent”?

Cryonics raises some of the most vexing problems regarding the legal treatment of dead bodies as there is vast disagreement as to its viability. Some people believe that the technology will eventually be available and view cryonics as offering the best opportunity for people to finally be able to transcend death. Others see cryonics as a pipe-dream and the cryonics industry as charlatanism at its worst, designed to take advantage of people at their most vulnerable time. Will the law outlaw, tolerate or encourage cryonics? If allowed, who will decide whether a person’s body will be frozen for possible re-animation? If it were to work, would the newly de-frosted person be treated as the same person who died or as a new person?

Reputational interests raise their own set of questions. Some aspects of reputation lay firmly outside the law. For example, if a friend divulges our most embarrassing secrets, the law generally will not get involved. However, the law does step in to safeguard reputations in cases of defamation and invasions of privacy. Will these protections extend beyond death?

A person’s artistic creations, name and image lay somewhere between property and reputational interests. During a person’s lifetime, the legal doctrines of copyright, right of publicity, and moral rights allow people to control the exploitation of their works. What about after death? Can an artist continue to exert control over what happens to his creations? Through computers, an actor’s image can be manipulated such that she can continue to star in new movies long after death—can an actor leave instructions that control the extent that this will be allowed to happen?

Even the question regarding control of property at death is knottier then it initially appears. Although American law provides explicit protections for people to be able to transmit their property at death, there is a distinction between directing who receives property and imposing long term controls over that property.
As mechanisms that allow people to leave instructions on the use and disposition of their property, trusts are commonly established to benefit particular individuals or to promote charitable or other purposes. Their appeal and potential power lies, in part, in the fact that they can be drafted to last long after the lives of the settlor and all the beneficiaries living at the time the trust is created. Yet, while the trust mechanism creates the possibility of long-term posthumous control, the law must decide the extent to which this protracted control is going to be allowed. For example, the law must decide whether there is going to be any time limitations on trusts. In addition to duration, there is the question as to the extent to which the law will allow posthumous meddling by enforcing trust provisions that are designed to encourage (or even coerce) certain behavior. For each of these questions, and more, the law is called upon for answers.

Conceptions of Death and the Law

The question of how the law should treat interests of the dead is at least partially predicated on our understanding of what it means to be dead. For example, if we believed that the dead could “see” what was happening among the living (as the afterlife is often depicted in American movies and literature), then we might find it appropriate for the law to continue to provide many of the same protections for the dead that it does for the living so as to not hurt people’s feelings.

The question regarding the appropriate legal rules applicable to the dead is much more complicated when we have no agreed upon understanding of the afterlife. This raises the question: if death marks the end of conscious existence, shouldn’t it mark the end of legal existence as well? Societies take this position with respect to voting. No matter how committed a person is to a particular party or candidate during her life, the law does not allow her to cast ballots for elections occurring after her death. The justification for this rule seems self-evident—we are skeptical about people’s ability to make good decisions for the future when they are limited in their knowledge to the world of the present. Moreover, it seems inappropriate to give decision-making authority to people who are not going to be around to enjoy the benefits or suffer the consequences of their decisions.

This was an early American value, expressed by no less than the venerable Thomas Jefferson, who frequently warned against allowing the wishes of the dead to prevail over the living.

That our Creator made the earth for the use of the living and not of t. dead; that those who exist not can have no use nor right in it, no authority or power over it, … these are axioms so self evident that no explanations can make them plainer.

And yet, today there are many situations where American law, as well as the law of other countries, recognizes interests of the dead, enforces their decisions, and allows them to bind the living.

Patterns and Trends in American Law of the Dead

The legal issues involving interests of the dead have arisen and developed within different substantive corners of American law, including torts, property, criminal law, evidence, intellectual property, privacy, and tax. As such, little attention has been paid to the cumulative picture of the law of the dead, and little effort has gone into truly understanding it’s far reaching implications. However, by wending our way through these different corners and culling the law of the dead, we are able to see patterns that would otherwise remain undetected.

The defining features of American law of the dead in the 21st century are as follows:

• Americans exert significant control over property at death. Family members generally have no claim over a decedent’s property. Moreover, Americans are largely free to impose whatever conditions they want, and their plans for the disposition of property can often be imposed for as long as they want, even in perpetuity.

• American law provides no protections for reputational interests after death. Claims for defamation and invasion of privacy do not apply once a person is no longer living.

• American law has an uneasy relationship with control over the body. The foundational principal is that people do not own their bodies, and thus have no enforceable rights to control their bodies after death. However, this has been complicated in recent years due to the increased need of bodies for transplant and medical study.

American law regarding interests of the dead has changed over time, and this change has a pattern: American law has moved over the years to grant more rights to the dead. This change has been particularly notable in terms of American’s ability to exert control over their property after death. Charitable trusts, dynasty trusts, copyright law, and the right of publicity are all areas where the dead have been given increasingly greater rights over the course of American history. The contemporary rights of the dead have flourished with little attention being paid to the costs imposed on the living.

Charitable trusts provide a powerful mechanism for people to live on after death. In a charitable trust, a person directs that her property be devoted to a particular charitable purpose. Ford, Macarthur, Rockefeller, Pulitzer, Nobel and Olin are all names known to us today because these people left money in eponymous charitable trusts. Given their ubiquity, it might be hard to believe that charitable trusts were not allowed under American law throughout most of the 19th century. It was thought to be poor policy to allow an individual to create his own perpetual entity devoted to whatever purpose he thought best. Beginning in the 20th century, however, the perpetual private charitable trust became not only tolerated, but favored in the law and subsidized by the government through the tax code. Charitable giving is undeniably able to accomplish substantial good but the subsidy for individual charitable giving means that fewer resources are available for governmental programs. Moreover, our current laws give considerable deference to maintaining these charitable trusts in perpetuity. Unfortunately current law does nothing to address issues of waste that are all too prevalent in perpetual charitable entities.

Dynasty trusts provide another, more recent, mechanism through which people are able to continue to exert their wishes long after they have died. For centuries, the law placed a limit of approximately 90 years for the duration of non-charitable trusts. It was considered bad policy to allow people to exert control for a time period longer than the lives of those living at the time of the creation of the trust, plus the term of minority for the next generation. This 90 year limitation was accomplished through the arcane Rule Against Perpetuities which required all interests in trusts “to vest or fail within lives in being plus 21 years.” Beginning in the late 20th century, however, a number of states began repealing their Rule Against Perpetuities. The banking industry lobbied for this transformation because it facilitated the marketing of a tax savings device known as the dynasty trust, and resulted in the influx of dollars to banks operating in jurisdictions with this favorable legislation. Today, Americans have the ability to set property aside for the use of their heirs in perpetuity. Due to the flexibility of trust law, these dynasty trusts can also shield the beneficiaries from liability to creditors, including victims of a beneficiary’s tortious acts. Because of their recent vintage, the social costs of dynasty trusts have not yet been felt. However, the result of these trusts will be the creation of new societal divisions, between those who are beneficiaries of these tax-free, judgment-proof, long term trusts, and the rest of society.

In addition to the potential harm to society, these dynasty trusts can also harm the beneficiaries themselves. Many wealthy people, including Andrew Carnegie and Warren Buffet, believe that it is not in their children’s’ best interest for them to be given so much wealth that they don’t need to work. As Carnegie said: “It is no longer questionable that great sums bequeathed oftener work more for the injury than for the good of the recipients.” And yet, dynasty trusts take this decision-making authority away from parents because the ancestor settling the trust decides how much wealth their descendants will get at each generation.

Copyright law is another area where American law has moved to grant more rights to the dead. Copyright law was originally established to provide a short term monopoly for a person’s creative works, after which time the creation would become part of the public domain. The original copyright term was 14 years, with the possibility of renewal for one more 14 year term if the holder was still living. Thomas Jefferson chose this term based on actuarial calculations because he wanted the term to last no longer than the life of the original holder. Over the years, however, as copyrights have grown in value and as they have become important business assets, the copyright statute was revised numerous times, consistently lengthening the term for copyright protection. Today, rather than lasting for the life of the creator, copyright protection now lasts until 70 years after the death of the creator. Due to these changes, a work created today will likely not be available for general consumption until the middle of the next century.

While this copyright extension has produced more value for private owners, it has come at a significant cost to society. The increase in copyright protection both limits public access to original works, and inhibits the creation of new works that build on the originals. The harm caused by this extension of copyright is made even greater by the breadth of copyright protection. Many were surprised when the family of Martin Luther King, Jr. sued USA Today for publishing and CBS for broadcasting the “I have a dream speech” without first paying the family. They were even more surprised when the family won. Since then the family has exerted a stranglehold on King’s image and words. Indeed even the Foundation that is building a memorial to Dr. King on the National Mall was required to pay the family $800,000 for the use of his words and image. The enforcement of these rights is even stronger when they are owned by corporate entities—an increasingly common phenomenon.

Finally, the right of publicity is yet another area where the dead have acquired rights in recent years that never before existed under American law. The right of publicity is the right of an individual to control the commercial value of her name, image and likeness. The right of publicity was used by the singer Bette Midler to stop a car company from using a singer in a commercial who sang in a similar style to Midler and by Jacqueline Kennedy Onassis to stop an advertiser from using an Onassis look-alike.
 

The right of publicity was born in the early 20th century. When it was first recognized under the law, its protections were explicitly limited to the life of the person. Beginning in the 1950’s, however, American law began to treat the right of publicity as a property (as opposed to personal) interest which could be freely marketed. Shortly thereafter, states began adopting statutes allowing the right of publicity to survive death. While states differ in their approach, the most common duration of protection is 50 years after death. However, Tennessee, home of Elvis Presley, has enacted a statute which has the power to protect a person’s right of publicity in perpetuity and other states are under pressure to do the same.

The extension of the right of publicity has created value for heirs and the corporate entities that frequently own these interests. However, this too comes at a cost. Virtually every celebrity owes at least part of their identity to celebrities of the past (think Marilyn Monroe, Jean Harlow and Madonna as incarnations of the forthright sexual blonde). By granting current celebrities and their heirs the right to exclusively control these identities, we deny their beneficial use to future generations of would-be celebrities.

The rights of the American dead have multiplied over the years. This growth of rights has undoubtedly provided economic, and perhaps even psychological benefits to some. But for society, these new rights involve a transfer of resources and their control away from the living. In order for legal rights to be granted to the dead, societal resources must be devoted to creating mechanisms through which people’s wishes can be captured as well as institutions for the enforcement of these wishes. It is the thesis of this book that societies at different times have made different decisions regarding the legal rights of the dead, and that by studying these decisions, we can gain important insights into the society’s understanding of death, as well as what it truly values for the living.

Ray Madoff is a Professor at Boston College Law School where she teaches trusts and estates, estate and gift tax, estate planning, and a seminar on immortality and the law. She is widely sought for commentary on these and other topics and has published several op-eds, including two that appeared in the New York Times. She is the lead author of Practical Guide to Estate Planning, and has written in a variety of areas involving property and death.