It's been on my mind: what legal say do the dead have?

September 11, 2008 7:52 PM

In the United States, what legal rights are there for dead people? Does the constitution have stipulations for the rights of dead Americans and non-Americans who die in America? Also, how long - hypothetically - does a person need to be dead until their body becomes public property and, in the case of those who die leaving kin, are dead bodies 'owned', and for how long?
posted by parmanparman to law & government (15 answers total)

1 - None. Your rights die with you. Some obligations and powers will pass to your legal representative if one is appointed.
2 - No. The Constitution is silent on this point. These are issues governed by state law.
3 - No one's body becomes "public property". In most states, the next of kin have the legal right to determine what is to be done with a dead body. Medical examiner laws provide an important exception.

If there is a more specific question here, spell it out.
posted by yclipse at 8:01 PM on September 11, 2008

There are four areas where I can see thinking about things being done to "protect the interests" of the deceased. I.e. where the executor etc have obligations to act a certain way because of something about the deceased.

I don't have a legal background so can't answer the question whether the legal basis of these is framed with reference to the "rights" of the deceased or with reference to an interest of the state or the survivors...if yclipse has such a background maybe s/he can elaborate on my parenthetical guesses here -

Disposition of body/remains - (meant to be done in accord with your wishes expressed before death, but not framed as a right held by the dead person?)

Distribution of your estate/possessions - (again meant to be done in accord with your wishes, but not framed as a right held by the dead person?)

Postmortem rights to things like your name and image if you're famous - (these are held by your estate I think? can the inheritors do anything they like with the name/image, or would a judge step in to protect the "good name" or something of the deceased if they inheritors went on a campaign to trash it?)

There are some domains where e.g., the courts/government won't release documents or records about you until after you've been dead for some period of time, often decades. (I don't know whether this is justified by reference to your rights/interests in not having your good name besmirched for a period of time, or the rights/interests of your survivors not to be distressed etc.)
posted by LobsterMitten at 8:20 PM on September 11, 2008

Well, necrophilia is illegal. Does that count as rights for the deceased?
posted by No New Diamonds Please at 8:22 PM on September 11, 2008

AFAIK 'dead people' is a contradiction in terms. You aren't people once you're dead.
posted by pompomtom at 8:29 PM on September 11, 2008 [3 favorites]

I've read cases that place a property right in the dead body, but that's usually when someone loses the body or something and the widow/widower wants damages.
posted by lockestockbarrel at 8:34 PM on September 11, 2008

I do know - or did about 8 years ago - that if you die in a US county, you are dead in that US county. We will count you, and if no one claims you, we will bury you. (Or burn you.)

Are you worried about having your body snatched, like Howard Hughes'? Or just want to make sure that once you're dead, someone will at least have to go through the courts to have you disinterred. (They will - although some times it's a rubber-stamp deal or outright fraud.) Public property is not a thing that happens - notice various legal scuffles over archeological remains.

If you have documents or errata that you don't want peeped at, your best bet is to donate that to a school or foundation with the requirement that your errata is not made public until everyone you knew is dead, or later.

Answers to some of your casual questions about death might be found in this bedtime reading.
posted by Lesser Shrew at 8:56 PM on September 11, 2008

I am pretty sure that under US law it's virtually impossible to libel a dead person, though that may vary somewhat from state to state. (ref)
posted by Class Goat at 8:58 PM on September 11, 2008

(I think the reason is that the dead person can't sue, and no one else has standing.)
posted by Class Goat at 9:00 PM on September 11, 2008

Nthing the point that anything bad that happens to a corpse is usually considered a property or psychological damage to a living relative; it's kind of like an assault, settled in a civil court, outside of any criminal complaints.

your rights/interests in not having your good name besmirched

LobsterMitten ... I need to clarify that you cannot "besmirch the good name" of a dead person. Laws generally regard that it is impossible to libel or slander a dead person, since they're not around to suffer damages.

Well, necrophilia is illegal. Does that count as rights for the deceased?

These kinds of laws aren't generally there to prevent the acts of necrophilia themselves, so much as what is usually associated with them -- murder, for one thing (many famous serial killers were necrophiles), and theft and abuse of property.
posted by Cool Papa Bell at 9:04 PM on September 11, 2008

While necrophilia may be illegal in most states, Wisconsin wasn't always so sure
posted by TheRaven at 4:53 AM on September 12, 2008

My (admittedly limited) understanding is that the moment you die, your carcass ceases to be a person in the eyes of the law, and instantly becomes mere property — property belonging, along with everything else you own, to your estate.

It's only when a person dies with no identifiable next of kin that their body ends up being disposed of by the state. Fundamentally, this seems not dissimilar to the way a person who dies intestate without anyone to inherit their property escheats to the state. (Although for practical reasons I think the state can dispose of a body faster than personal or real property escheats.)

This Wikipedia article suggests that you end up buried by corrections inmates on Hart Island if your body isn't claimed within two weeks after turning up dead in NYC.
posted by Kadin2048 at 6:28 AM on September 12, 2008

Are you discreetly asking about the legal rights of zombies?
posted by Pronoiac at 9:49 AM on September 12, 2008

In California, ones right (with some substantial exceptions) to the use of ones "name, voice, signature, photograph or likeness on or in products, merchandise or goods" passes to ones heirs upon ones death. A minority of states have similar laws.
posted by jedicus at 10:06 AM on September 12, 2008

Are you discreetly asking about the legal rights of zombies?

No, I am thinking about human rights law, property rights, and the deceased.
posted by parmanparman at 11:00 AM on September 12, 2008

parmanparman, in case you're interested, the US Constitution with all 27 amendments is only about a dozen pages and doesn't take long to read. It's also really interesting.
posted by DarlingBri at 5:24 PM on September 12, 2008