Benjamin Bestgen: The rights of the dead



Benjamin Bestgen

Benjamin Bestgen this week explains that the extinction of rights upon death is more complicated a matter than it first seems. See his last jurisprudential primer here.

Fans of old-school computer games might still remember Grim Fandango, where the player guides afterlife travel agent Manny Calavera through a corruption scandal that deprives virtuous souls of their express journey to the Land of Eternal Rest. More recently, TV show The Good Place imagined the moral and personal struggles of the deceased, demons, angels and even a judge who arbitrates on interdimensional matters and is as old as time itself.

Philosophically, death, dying, its nature and our handling of it is a fundamental question we all must face. If we haven’t mentally and practically prepared, there may be a higher chance that, unless we somehow die instantaneously, we won’t die in peace, with dignity, acceptance and clarity but instead afraid, struggling, distressed or angry. 

This article isn’t about the philosophy of death or the psychology of death acceptance. However, Scottish forensic anthropologist Sue Black and US-American mortician Caitlin Doughty have both presented engaging and informative works about death, dying and all sorts of questions around these subjects to counter the increasing “death illiteracy” in Western societies. It would certainly help if death wasn’t presented as macabre or gory entertainment, nor should it be feared, euphemistically talked away or unnecessarily dramatized. It is a fundamental and normal part of life, like birth, sex, breathing or food and should be approached as such.

But surely legal rights cease to matter when you are dead – assuming, of course, you don’t want legal representation for Judgement Day? 

Post-mortem rights

Jurist Kirsten Smolensky considered whether it even makes sense to say the dead have rights. Proponents of the “Will Theory” of legal rights argue that the exercise of rights requires sentience and decision-making capability. The dead, much like comatose persons, demented individuals or babies, lack such abilities. While the law may afford them protection and respect, this is better conceived as an immunity or passive privilege, not a right. 

In contrast, the “Interest Theory” says that an entity has interests, even if it is unable to express them personally and may need an advocate to act for it. Rights exist to protect and enable interests. The comatose, brain-damaged, animals, unborn generations, rivers or the dead can have interest. For instance, the dead may well have an interest in their reputation and legacy or in ensuring that their property is dealt with in a way they would have wanted. They also have interests regarding the disposal of their mortal remains (including organ donation) or wishes for their descendants’ education, careers or family. Hence there should be legal rights which protect and enable these post-death interests.

For Smolensky, the importance of a post-mortem right is that it is a right which the law honours even after the right-holder died and where the beneficiary of that right is the deceased and/or his estate, not some living third party.

Last will and testament

Courts tend to respect the autonomy and dignity of the deceased as expressed in their last wishes. This may include testamentary conditions for inheritance, such as that heirs must abstain from drug consumption, retain the family name after marriage or only marry partners that fit certain criteria: in the US case of In Re Estate of Keffalas (233 A.2d 248 (Pa. 1967)), a condition imposed on the three unmarried sons of the deceased to inherit only if they “marry someone of true Greek blood, and descent, and of Orthodox faith.” was upheld.

However, courts won’t uphold last wishes that are illegal, against the public interest (e.g. the destruction of cultural artefacts or important artwork) or interfere with rights and liberties of the living. In the Keffala case, the fact that inheritance was conditional on the sons marrying a certain type of partner does not interfere with their right to marry whomever they want (though it may cost them the inheritance). However, had the condition been that an already married son should divorce their spouse before they can inherit, their right of freedom of marriage would have been violated.

Disinheriting family

Some jurisdictions agree that a deceased should have full autonomy over their estate. If they don’t wish to pass it on to their kids or spouse, so be it. Others, like Germany, consider that a parent will (subject to narrow exceptions) always have some duty of care for the welfare of their closest and immediate family. German law, therefore, allows for a portion of an estate (the “Pflichtteil” or “duty part”) to go to “disinherited” parties. 

England, under the Inheritance (Provision for Family and Dependants) Act 1975, allows for disinherited parties to present a “moral claim” that they should receive some money, which will be assessed on a case-by-case basis (Ilott v Mitson [2017] UKSC 17).

De mortuis nil nisi bene dicendum

“Of the dead, say nothing but good” is a phrase attributed to Chilon of Sparta (in Ancient Greek he would have said: τὸν τεθνηκóτα μὴ κακολογεῖν). This may inspire hypocritical eulogies where your miserly, rude and illiterate Uncle Bob suddenly becomes a warm-hearted, generous man of letters after he’s kicked the bucket. 

But even if Bob was a saint and you decide to slander him out of spite, in many jurisdictions, an estate or executor cannot sue a third party for defamation of the deceased. While the living may care about a deceased’s reputation and memory, the dead themselves no longer suffer loss or harm from defamatory utterings about them. 

Other jurisdictions hold that a person’s honour and good name don’t die with them: they live on in society and should be protected from defamation and unjustifiable insults. 

Body disposal and organ donation

Northern Ireland law professor Heather Conway notes that considerable amounts of precedent arise from disputes between family members, public authorities or religious organisations on these matters. From ceremonies, gravestone inscriptions, eulogies, organ donations, autopsies, ways to dispose of the corpse – even if a will specifies the deceased’s wishes, conflict among the living can still ensue. 

Courts will generally seek to discover what the deceased wanted and give effect to it as far as possible and lawful. The idea is again that respect for the autonomy of a person in life requires us to protect their interests regarding their own body after death.

Marriage and procreation

Tim Burton delighted viewers with his cartoon Corpse Bride, but “ghost marriages”, while uncommon, exist in various cultures, including China and Sudan.

Article 171 of the French Civil Code allows, in certain extreme cases, the marriage between a living person and their recently deceased partner.  

There are also some cases where a person had either sperm or eggs frozen for future use and died. Their surviving partner then claimed this genetic material to create the offspring they had planned to have while the deceased was still alive.

While these rights appear to benefit the living more, courts investigate with extreme care whether the deceased would have wanted to enter into the marriage or had concrete plans to procreate with the claimant. This again indicates that courts think that rights to marriage and a family life can still matter even after death.

Vanitas

While life is transient, pleasure fleeting and death certain, lawyers cannot help but reflect on post-mortem rights when drafting wills or handling a deceased client’s estate. The important questions of “Whose right is it? Whose interests does the law protect? Who has standing in this matter?” do not always go away just because the right-holder has died. 

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.


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