Recent blogs have discussed ways to legally or illegally dispose of a body but overlooked one important point: who has the legal right to dispose of a dead body? Who owns your body when you die?
According to Barker Evans Private Client Law, the answer is no one. It is not possible to legally “own” a body, but certain people have authority to dispose of it—although not necessarily the people you might think. The deceased’s “personal representatives” have the right to dispose of the body. If there is a Will, that would be the executor(s) of the Will.
When my mother died, my sister and I were co-executors of her will and we, along with our brother, planned her funeral—and it went very smoothly. But what if we had disagreed about the disposal of her body?
“Virginia law determines who can make decisions about funerals and body disposition — that is, burial or cremation — after someone dies. This right and responsibility goes either to a person you name in a signed, notarized document or your next of kin.” (Virginia Code § § 54.1-2825 and 54.1-2807(B).)
Writers take note! The possible ramifications are endless. If there is no Will, whoever is entitled under state intestacy laws to administer the estate would be in charge. Here it’s important to know the laws in the state where the person lived, because according to Nolo (publisher of plain-speak legal guides and online articles):
It’s up to the probate court to appoint an administrator if one is needed. But how does the court, without guidance from a will, choose someone? The answer is found in state law. Every state sets out an order of priority for judges to follow when appointing an administrator. For example, here is the priority list for serving as an administrator in Oklahoma:
1. Surviving spouse or a person the spouse nominates
3. Mother or father
4. Brothers or sisters
6. Next of kin entitled to inherit under state law
8. Any legally competent person
So when an Oklahoma resident dies without naming an executor, the surviving spouse is first in line to be appointed as administrator. If the spouse doesn’t want the job or isn’t able to do it, he or she can nominate someone—in essence, the surviving spouse stands in the place of the deceased person. (58 Okla. Stat. Ann. § 122.)
If the survivor doesn’t name someone, then the court moves on to the children, then the parents, and on down the list. Courts do not, by the way, automatically appoint the oldest sibling as administrator. All children of a deceased person on are an equal footing.
Some states don’t go into nearly so much detail. New Jersey, for example, provides this short list:
1. Spouse or domestic partner
2. Other heir (person entitled to inherit under state law)
3. Any other person
TL;DR – Without a Will, the court decides who can have the body. Laws prioritize survivors differently everywhere.
Suppose some family member/character really wants to be administrator. What could go wrong? Again, according to Nolo:
Certain people who would otherwise be entitled to serve as personal representative are disqualified under state law. (The same factors apply to persons nominated in a will.) Here are some factors that may or may not serve as reasons for disqualification:
~ Age. No state allows persons under 18 to serve as a personal representative; many set the minimum age at 21.
~ Criminal history. Some states forbid persons convicted of serious crimes from serving. (See, for example, Washington Rev. Stat. § 11.36.010.) Others require only that anyone who has been convicted of a felony inform the probate court. (For example, Oregon follows that rule. Or. Rev. Stat. § 113.092.)
~ Business relationship. In Oklahoma, if the deceased person was a member of a partnership at the time of death, the surviving partner must “in no case” be appointed as administrator.
~ Residence. All states allow persons who don’t live in the state, under certain circumstances, to serve as personal representatives. A few states allow this only if the person is a close relative. Many others require a non-resident to post a bond or appoint an in-state agent for service of process (that is, to receive communications from the court).
~ Citizenship. There isn’t much law on this, but the courts that have considered the question have ruled that noncitizens may serve as executors. Courts are usually more concerned about who’s actually a resident of the state; the court wants to be sure is has jurisdiction over the personal representative. (See, for example, the Florida Supreme Court’s decision in In re Estate of Fernandez, 335. So. 2d 829 (Fla. 1976).)
Apart from such detailed grounds for disqualification, probate court judges commonly have a lot of discretion about whom they issue letters to. In the states that have adopted a set of laws called the Uniform Probate Code, judges can disqualify anyone they find “unsuitable” in a formal proceeding. Usually, a court finds someone unsuitable if there is credible evidence of serious dishonesty, substance abuse, or mental disability.
TL;DR – Some people aren’t allowed to be in charge of making decisions for a dead person. Specific laws are different everywhere.
Writers note: when more than one person is equally eligible, the court may choose only one administrator. Whoever is chosen, the situation is ripe for tension and conflict. But consider other possibilities: would creditors simply take the least expensive option possible?
Duty to Dispose of a Body
A person who is in lawful possession of a body has a right or duty to dispose of it. Who other than executor/administrator?
- the owner of a building where a person died
- coroner when an autopsy is required
- local authority if there is a risk to public health or public decency
Giving Your Body Away
First and foremost, you cannot will your body to a person because it is illegal to own a body.
If you want to donate a body there are three choices: donate to a university, to a state agency or to a non-transplant tissue bank, which includes brokers who sell the bodies. The brokers make money by providing bodies and dissected parts to companies and institutions that use them for training, education and research.
As long as you are alive, your body parts are your own. Don’t inadvertently make a tissue donation when you have surgery. If you negotiate the terms with your doctor, hospital, and tissue banking system in advance, you can retain possession of removed body parts, such as tumors. If you do not make a clear contract before your tissue is biopsied or dissected, your ownership of it will be compromised, and it will be at the medical center’s discretion whether you will be able to access it. Recent lawsuits between patients and hospitals over who owns tissue have been ruled in favor of the hospital. Read the informed consent forms prior to biopsy and surgery extremely carefully and have a lawyer look at it if possible. If there is anything that doesn’t sound right to you, do not hesitate to bring it up with your doctor. (Rebecca Skloot, “Taking the Least of You,” The New York Times Magazine, April 2006.)
Selling Your Body—Say, what?
According to Reuters:
Q: So it’s legal to sell whole bodies and their parts, even heads and limbs?
A: It’s illegal to sell human fetuses. Otherwise, yes: In almost every state, it’s legal to sell the human remains of adults. One misconception promoted by some brokers is that it is illegal to sell body parts and that people who distribute them may only be reimbursed for processing, shipping and other expenses. In most states, such laws only apply to transplant organs, such as hearts and kidneys, and to tissue, such as skin and bone. But in almost every state, these laws do not apply to whole cadavers or to parts, such as torsos, shoulders and heads. Reuters found that some brokers conflate rules for transplant organs with those for non-transplant body parts in order to create the impression that they do not profit from body donations.
Q: Is it legal to sell your own body to science?
A: Legal experts disagree. Some lawyers contend that it is not possible. That’s because a person’s property rights to his or her body cease at death. But others note that a person who donates a body to science may receive a free cremation in return, which could be construed as a form of payment. What’s not disputed: Federal law clearly prohibits the sale of one’s own organs and tissue for transplantation.
The Bottom Line here is ironic: you own your own body while you are alive, but you cannot sell parts for transplantation. On the other hand, once you are dead, no one owns your body but your executor/administrator can sell it whole or in parts.