WHOSE BODY?

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

2. Children

3. Mother or father

4. Brothers or sisters

5. Grandchildren

6. Next of kin entitled to inherit under state law

7. Creditors

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.

But not illegal to own a lot of bodies, apparently.

 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.

It is recommended that you not dispose of vital organs while you are alive, unless they are made of rubber and used for EMT training.

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.

No worries!

SIX FEET UNDER—OR NOT (LEGAL EDITION)

“Fantasy Coffins” are currently a very popular method of burial in Ghana.

Death is a big deal, both in real life and in fiction. And where there is death, there is (usually) a body to be disposed of. Most of us have a pretty clear idea of what happens when someone in the family dies.

In my family, the body is taken from the hospital to a local funeral home. It is embalmed and displayed in an open casket, sometimes a half casket. Relatives and friends gather to reminisce and grieve together during viewing hours at the funeral home. A memorial service is held at the funeral home or the deceased’s church, according to religious preferences. Everyone is then invited to proceed to the cemetery for a brief graveside service and burial in a family plot.  Friends and family are often invited to gather at a relative’s home to eat, drink, and be memorializing.

Fluffy white collars are the standard uniform at medical schools today.
(The Anatomy Lesson by Dr. Sebastiaan Egbertsz by Aert Pietersz)

But families differ. My father-in-law, mother-in-law, and sister-in-law all donated their bodies to medical schools. There was a memorial service near the time of death. When the cremains (cremated remains) were returned to the family (maybe as much as two years later!), there was a graveside service when the ashes are buried in a family plot, attended by immediate family and intimate friends.

I’ve also been involved in scattering the ashes of two friends, one on Cape Cod and one on the Outer Banks of North Carolina. In both cases, there was a memorial service soon after death and the ashes were scattered weeks or months later.

There is a growing trend in some places (Puerto Rico and New Orleans, for example) for “Extreme Embalming.” Rather than being laid out in a casket, the deceased is dressed and posed to be as lifelike as possible. These elaborate presentations are often the main attraction at huge, rowdy parties celebrating the deceased.

Party on!

In my personal experience, dead bodies have been disposed of in pretty unspectacular ways.

But Wait! There Are Options!

The first option comes before the body is actually disposed of: the body can be taken home until time for permanent disposal, as long as it can be kept cool, for example using dry ice.

WAYS TO DISPOSE OF A BODY LEGALLY

Artificial reef made with human ashes.

Watery Graves

  • Burial at sea, traditionally, meant a body wrapped in sailcloth and tied with weights to make sure it sank. Modern whole body burial at sea still occurs, and it involves the entire un-embalmed body being sunk in the ocean to great depths. Laws vary by jurisdiction.
  • Ship burial is a form of burial at sea in which the corpse is set adrift in a boat.
  • Reef casting, for example using Eternal Reefs, involves  mixing ashes with environmentally safe concrete. The resulting reef is placed in the ocean, where it becomes a habitat for sea life. Reefs range in price from $3,000 to $7,500, and there are locations for reef casting along the east and gulf coasts of the U.S.

Cremation And Its Alternatives

  • Traditional cremation is king, in the US and internationally. Although rare in the developed world until the late 19th century, it gained popularity following WWI. The body can be taken directly from the place of death to the crematorium. After the cremation, there are numerous options. Cremains can be scattered, buried, or neither (see below). 
  • Alkaline hydrolysis (aka water cremation): boiling water washes over the body constantly until the flesh, muscle, and organs liquefy. A chemical catalyst, usually potassium hydroxide, causes the decomposition. When complete, bleached bones and liquid human runoff remain.  After the body has been dissolved, the remaining bones are crushed into ash and returned to the family, much like the remains are returned after traditional cremation.  The system is 100% pollution free. It uses 1/10th the electricity of a traditional cremation. Because nothing is burned during the procedure, no toxic gases or air pollutants are produced, according to the Mayo Clinic, which uses the procedure in their anatomy department in Rochester, Minnesota. Check for current availability by state. For example, this option will be available in California in 2020.
Watch your loved ones explode!

Ashes To Ashes… Or To Something Else

  • Cremains from either method can be sent heavenward at a specified place in a biodegradable balloon. The balloon freezes at about 30,000 feet and bursts, releasing the ashes.
  • Cremains can be mixed with gunpowder for fireworks.
  • Bodies donated for medical education benefit physicians, dentists, nurses, and physical therapists. In addition, medical researchers use cadavers to develop surgical procedures. To the best of my knowledge, when the educational possibilities are exhausted, the remains are always cremated.
  • One can chose a facility that recycles heat generated by cremation to generate electricity.
  • Ashes can be launched into space if one has enough money and doesn’t mind contributing to space junk polluting the atmosphere.
Cremation art and jewelry from artists at Sands of Time
  • A portion of the cremains can be heated and pressed to make a diamond, costs varying by size, color, and cut of the stone. 
  • Turn human ashes into a vinyl record for about $3K. AndVinyly will use music or audio of your choice, with or without a photo on the cover.
  • Ashes can be incorporated into handcrafted glass art: jewelry, sun catchers, paperweight, etc., with or without ash showing.
  • Ashes can be stored in an urn or sculpture that looks like the dead person. 
  • Special tattoo techniques will allow a person to embed the ashes of a cremated loved one under their skin.
  • Artists can mix the cremains with paint or graphite to create portraits or murals honoring the deceased.

Buried, But Not Traditionally

  • “Burial” above ground is called immurement. For example, in New Orleans the high water level precludes ground burial; bodies are entombed above ground. But immurement occurs across the country in mausoleums.
  • Burial on private land is legal, but check local zoning laws. A funeral director is usually required to oversee the burial. If the person died of a contagious disease, embalming may be required.
  • “Green” or natural burial means the un-embalmed body is interred in biodegradable coffins or shrouds. There are no headstones, crypts, or even landscaping. Unlike a traditional burial, there are no plastic cushions, metal coffin parts, or embalming chemicals. Many green cemeteries even require metal tooth fillings, screws or plates on bones, pacemakers, etc. to be removed from the body.
  • Un-embalmed bodies can be buried in a suit made from mushrooms and other biodegradable organisms, allowed the corpse to become compost, with zero waste. You can get the suit or the shroud for $1500 or so and be buried in a biodegradable coffin or no container at all.
  • The remains of a cremated body (traditional or water cremation) might put into a biodegradable urn that is then buried with a tree seedling: dig a hole in a sunny place, fill with soil, wood chips, and the seedling. If you use Living Urn’s BioUrn, the urn comes with a proprietary growth agent and the seedling of your choice. Compatible trees include olive, birch, cherry, eucalyptus, and oak.
  • Promession—coming soon? Patented by a Swedish company and touted as an “ecological funeral,” it involves freezing the body with liquid nitrogen, vibrating it into small particles, freeze drying the particles, separating any metals, and placing the dry powder remains in a biodegradable casket in top soil.

Not Buried At All

  • Bodies donated to a body farm (aka outdoor forensic anthropology lab) for research purposes are sometimes not buried at all, but left to decompose naturally above ground. When they are buried, it’s likely to be atypical: for example, wrapped in plastic. The results of their studies help law enforcement agencies determine time and manner of death. They are also used to train cadaver dogs and search and rescue teams. There were seven body farms in the U.S. as of 2017.
  • Plastination is a process by which the body’s water and fat are replaced by plastics, which results in total preservation (i.e., the body doesn’t decay). Such bodies are often used in medical education, much as described above. Recently, hoards of people viewed the exhibit BodyWorlds.
  • Having the body cryonically frozen includes the possibility that, when medical science advances enough, the person can be thawed and revived.
  • Sky burials let animals eat the body. Dead bodies are placed on a mountain top to be eaten by scavenging animals or to decompose naturally. Traditionally practiced by some Native American groups using wooden scaffolding or tree limbs, it is currently common in parts of China, Tibet, Nepal, and parts of Northern India. Vajrayana Buddhism follow this practice because adherents believe the body has no use after death and might as well feed animals.
  • Composting a human body involves putting the body in a mix of wood chips, allowing thermophile microbes to decompose the flash and parts of the bones. At the time of this writing, in the U.S. it is legal only in Washington State.
Talk in class, and he may open the closet door.
  • Taxidermy is chosen by a few people: for example, the philosopher Jeremy Bentham, who had his dead body stuffed. His head, however, was mangled in a botched attempt at New Guinea mummification techniques and is now stored separately from the body. In accordance with his will, Bentham’s stuffed body (with a wax head) was posed and kept in a closet at University College of London.

Historic Means Of Disposal

Roman Catacombs
  • Mummification
  • Dismemberment, in which the body is divided. Historically, this was a form of execution, but sometimes body parts were separated and disposed of individually.
    • Catholic saints were occasionally dismembered so that multiple holy sites could store a piece of the saint’s body, usually in finely crafted reliquaries.
    • Members of the Habsburg royal family were entombed in the Capuchin Crypt with hearts and heads often stored separately.
    • Several ancient catacombs, including those under Paris and Rome, separated skeletons after death and stored bones by type.
  • Mass graves resulting from war, genocide, or natural disasters.
  • Plague pits to try to stop the spread of disease.

Be Aware Of Restrictions

Jewish funeral law requires that every corpse be buried.
  • Various religions and cultures have funeral rites that govern the disposal of a body. For example, some require that all parts of a body are buried together. Among other things, members of these groups cannot be organ donors.
  • Many jurisdictions have laws regulating the disposal of human bodies. Although it may be legal to bury a deceased family member, the law may restrict the locations in which they can be buried. In some cases, burials are limited to property controlled by specific, licensed institutions.
  • In many places, failure to properly dispose of a body is a crime.
  • In some places, it is a crime to fail to report a death and to fail to report the disposal of the body.

Bottom Line for Writers: Before you kill off a character, consider how you’ll get rid of the body. When I started this blog post, I envisioned a few headings, each with a few bullets below. But it just grew! I hope it held your personal interest and/or generated some plot ideas!

Coming Next Week: How to get rid of a body illegally!