Academic journal article Vanderbilt Law Review

Individualized Justice in Disputes over Dead Bodies

Academic journal article Vanderbilt Law Review

Individualized Justice in Disputes over Dead Bodies

Article excerpt

Trusts and estates scholars have challenged the outdated family paradigm of inheritance law. They have shown that the inheritance system's bias in favor of the "traditional" family excludes members of today's families, rewards the unworthy, ignores the meritorious and needy, and denies decedents control over distribution of their own property. Yet, those same scholars have rejected the approach that would best address the injustices of this paradigm: an equitable, individualized scheme that would transcend the family paradigm and base inheritance rights on the particular decedent's intent and actual relationships with survivors. The dominant view holds that fixed rules of inheritance based on family relationships are essential to avoid excessive administrative costs, inefficiency, and uncertainty in distribution of estates.

This Article challenges the dominant view. It demonstrates that in resolving disputes over dead bodies courts have a long tradition of applying the very scheme that scholars have rejected. Courts have abandoned the fixed rules of the family paradigm to dispense individualized justice. The Article concludes that inheritance reformers should draw on this historical precedent to develop more flexible, individualized, and family-neutral approaches for dispositions of decedents' assets as well as remains.

I. Introduction

In February 2007, the world had a ringside seat to a truly macabre fight. Under the glare of television cameras, Anna Nicole Smith's nearest but not dearest1 battled in a Florida probate court over custody of her body.2 The parties agreed on only one point: "Anna Nicole Smith's appearance was a paramount issue to her."3 Yet, those same parties denied Anna Nicole after death the beauty she prized during life. Because of their protracted legal wrangling, Anna Nicole went to her grave a decomposed corpse in a closed casket.4

Anna Nicole Smith's tragic fate is by no means unique. For nearly three months, the body of the self-styled "Godfather of Soul,"5 James Brown, lay refrigerated in a secret location while his children, disputed wife,6 and executors fought over his final resting place.7 Evangelist Billy Graham and his wife, Ruth, had an even more unfortunate experience. Unlike Anna Nicole Smith and James Brown, the Grahams were still alive when their children engaged in "a struggle worthy of the Old Testament"8 over where to bury the elderly couple.9

Red Sox legend Ted Williams suffered the ultimate indignity. After a family feud over his body,10 the once "Splendid Splinter" became a frozen, cracked head in an Arizona cryonics laboratory.11 With a greasy scrap of paper12 and a blind faith in the "miracles" of modern medicine,13 John Henry Williams consigned his father to the ranks of the living dead. Today, a great American hero is literally and figuratively suspended14 between life and death and "may never rest in peace."15

Disputes among a decedent's survivors are all too familiar to trusts and estates scholars and practitioners. Case reporters, textbooks, journals, tabloids, and websites regularly feature contentious and often bitter litigation over decedents' estates.16 These disputes have exposed a major challenge facing inheritance law today: adapting to the changing American "family." As a vast scholarly literature has documented,17 inheritance law continues to privilege membership in a "traditional" family that "fewer and fewer Americans experience as reality."18

In earlier work, I identified the human costs of an inheritance system that prizes family status above need, merit, and support.19 I looked abroad to foreign models, especially China's distinctive approach to inheritance, as inspiration for reform of American inheritance law.20 Based on my comparative study, I concluded that reformers should look beyond what I called the "family paradigm of inheritance law"21 to consider more flexible schemes that would base inheritance rights on survivors' actual relationships with decedents rather than formal familial ties. …

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