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Probate & Property

Nov/Dec 2023

The Law of a Last Request: Bury Me with My Favorite Toy, Part 1

William A Drennan


  • Advice columnists and bloggers advise removing the jewelry shortly before the casket is sealed.
  • Regardless of the economic or political system, human existence requires the accumulation and use of personal property.
  • An interesting mix of client beliefs, social practices, and factual circumstances can make the enforceability of a last request depend on whether it will encourage grave robbing.
The Law of a Last Request: Bury Me with My Favorite Toy, Part 1
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Can you take it with you? At least into your casket? Casket manufacturers now mass-produce caskets with “memory drawers” and “secret compartments” that can hold prized possessions and mementos. See Key Features on Which to Base Your Choice of a Casket, ToCanvas (Jan. 27, 2020). How can estate planners design and draft to help clients who want to take a cherished item along? This first article discusses potential client motivations, actual burial fact patterns, and techniques for an estate planner to address the one reported judicial opinion on this issue, which concluded the direction was unenforceable because it encouraged grave robbing. The second article, in a future issue, will focus on why this is a particularly challenging practical and legal area and describe potential design and drafting options for addressing the major legal issue beyond grave robbing—whether these directions are unenforceable under the public policy doctrine because of economic waste.

Motivations for “Taking It with You”

Regardless of the economic or political system, human existence requires the accumulation and use of personal property. Contemplating death and complete detachment from all belongings can be difficult, and “people seem to get a lot of utility during life from the thought that they will be buried wearing a wedding ring or that a particular sentimental item will be deposited in their casket.” Lior Joseph Strahilovitz, The Right to Destroy, 114 Yale L.J. 781, 802 (2005).

Archeologists tell us that people have been burying the dead with belongings for at least 10,000 years. Some ancients believed, with the last gasp, the spirit rose from the mortal remains and sojourned skyward, like breath visibly rising on a cold winter’s day, the body’s way of “giving up the ghost.” And to permit the deceased to “take it with them,” these ancients burned the deceased’s personal property so it would rise with the smoke, to unite with the ghost for the great journey beyond. See William J. Bowe & Douglas H. Parker, Page on the Law of Wills 39 (2003). Famously, the Egyptians of antiquity buried important dead with practical and priceless possessions to aid them in the afterlife.

Some modern people also want to “take it with them,” and there is great diversity regarding the “it.” “Most people possess certain objects they feel are almost part of themselves.” Roger Angell, “This Old Man,” New Yorker, Feb. 17, 2014. Property law scholars assert that items of property can become part of our “personhood.” See Deborah S. Gordon, Mor[t]ality and Identity: Wills, Narratives, and Cherished Possessions, 28 Yale J. L. & Human. 265, 271 (2016).

Such feelings may be criticized or condemned as “illogical” and “mere sentimentality,” but experts assert that sentimentality is part of a fulfilling and emotionally balanced life. See, e.g., Christian Maciel, 10 Reasons Why People Who Are Sentimental Have Beautiful Lives (Apr. 8, 2015). In some areas, the law acknowledges the value and importance of sentiment. In gift law, courts often recognize that engagement rings hold extra value related to the corresponding actual romantic and marital relationship. If an engagement ends without marriage, a court may require that the recipient return the ring despite being entitled to keep all other completed gifts from the rejected (or rejecting) fiancé or fiancée. See, e.g., Cooper v. Smith, 800 N.E.2d 372 (Ohio Ct. App. 2003); but see Albinger v. Harris, 48 P.3d 711, 720 (Mont. 2002) (allowing the donee to keep an engagement ring even if no marriage occurs in recognition of expenses likely incurred in planning the wedding).

Also, in determining the remedy in a breach of contract case, a judge or jury calculating money damages may increase the amount because of the sentimental value of the item. See Windeler v. Scheen Jewelers, 8 Cal. App. 3d 844 (1970) (granting money damages for a family’s emotional distress when a jeweler lost the family’s gemstones while resetting them). In addition, a court may grant specific performance because the sentimental attachment makes the item unique. See Margaret F. Brining, “Money Can’t Buy Me Love”: A Contrast Between Damages in Family Law and Contract, 27 J. Corp. L. 567, 577 n.58 (2002).

Real Life (and Death) Situations with Grave Goods

Burying people with an item is so common there is a term for the items—“grave goods.” “The practice of placing grave goods with the dead body has . . . an uninterrupted history beginning [at least 10,000 years ago].” Grave Goods, Wikipedia.

Today, industry insiders indicate that many decedents are buried with valuables. See Marshall Jacobs, Can Things Be Placed in a Casket?, Funerals (May 20, 2017). “It might seem unthinkable to bury [a corpse] . . . with an item of value . . . but many people do,” and the items can include “money, jewelry, and family heirlooms.” Fioritto Funeral Serv., Top Ten Items to Place in a Casket (Sept. 5, 2019). After noting a trend toward “more creative ceremonies,” with people being buried with musical instruments, hobby items, sports memorabilia, and more, one manager of funeral services “said she could write a book on what she had seen.” Cristy-Lee Macqueen, You Can Take It with You! The Unique Items People Are Buried With, ABC Tropical N. (June 14, 2019). See also Strahilovitz, supra, at 800–01 (“[Under] prevalent social norms, . . . people are often buried wearing their wedding rings, expensive clothing, and other items of considerable value.”). Sometimes the decedent directs the burial of these grave goods, and sometimes surviving family members or friends add these items on their own initiative.

Cars & Motorcycles. A “famous Ferrari” case garners a great deal of the ink on this topic. Flamboyant Beverly Hills oil-heiress and socialite Sandra Ilene West often is pictured cross-legged, sitting (or sliding down) the hood of one of her three Ferrari autos. She directed in her handwritten will that she be buried in one Ferrari, in a lace nightgown, “with the seat slanted comfortably.” Madelyn Mendoza, A Beverly Hills Socialite Was Entombed in Her Ferrari in San Antonio 44 Years Ago, MySA (May 26, 2021); Jim Motavalli, You Can Take It with You, if the Grave Is Deep Enough, N.Y. Times, Feb. 24, 2022 (discussing several actual and alleged car burials). Inspired by a different “bury me in my car” true story, blues legend Stevie Ray Vaughan had a song highlighting a “Cadillac coffin.” See Benjamin Hunting, Loving Your Car to Death: Can You Be Buried in Your Favorite Vehicle?, Motortrend, Aug. 14, 2022. Predictably, others choose to be buried astride their motorcycle. See Shona Hendley, Four Unique Stories of People Who Were Buried with Their Vehicles, carsales (Nov. 6, 2022).

Jewels & Designer Clothes. As discussed in more detail below, apparently the only reported judicial opinion on the legality of this sort of last request involved a desire to take along “diamonds and other jewelry.” Meksras Estate, 63 Pa. D. & C.2d 371 (C.P. Orphans’ Ct. 1974). Although the executor refused to grant that last request, and the court declared it unenforceable because it would encourage grave robbing, commentators note that people routinely bury the dead with their engagement and wedding rings with no legal challenge at all. See, e.g., Strahilovitz, supra, at 802. While beneficiaries litigated other aspects of Leona Helmsley’s last will, her direction to be “interred wearing [her] gold wedding band (which is never to be removed from [her] finger)” apparently went unchallenged. See Last Will & Testament of Leona Helmsley. Some advice columnists and bloggers advise removing the jewelry shortly before the casket is sealed, sometimes expressing concern that the undertaker will steal the jewelry. See, e.g., Decide Whether to Remove All Jewelry of Value Before Burial.

Reportedly, Whitney Houston was buried wearing $500,000 to $750,000 worth of jewelry, without legal challenge, but there were great concerns about grave robbing. Ted Casablanca & Alyssa Toomey, Who’s Protecting Whitney Houston and Her Jewels?! (Feb. 28, 2012); Lucy Buckland, Whitney Houston’s Body to Be Encased in Concrete, Daily Mail (Apr. 30, 2012). She also wore designer clothing including glittering golden slippers. Legendary entertainer Sammy Davis Jr. was buried with $70,000 worth of jewelry, but his wife subsequently had his body exhumed and removed the jewels to pay tax debts. Kate Meyers Emery, Bones Don’t Lie: More Famous Dead (Dec. 20, 2012). Famous movie star Bela Lugosi was buried wearing the cherished (and likely priceless) cape and other Gothic clothing he wore in the classic Dracula films. Grave Goods: Famous People Who Were Buried with Unusual Keepsakes, Funeral Guide (Feb. 16, 2017).

More Big Money Items—Collectibles. It’s widely reported that former President John F. Kennedy, an avid collector of scrimshaw, was buried with a whale tooth engraved with the presidential seal. Id. In an excellent article describing steps beneficiaries may follow when disposing of an inherited collection, two scholars repeat the maxim that “nearly everything is collected by someone.” Thomas Eyssell & Daniel Yezbick, Dad Was a Collector . . . A Guide for Overwhelmed Heirs, 88 CSA J. 55, 57 (2022). They discuss valuables clients may collect, including stamps, coins, works of art, sports memorabilia, Hollywood memorabilia, political memorabilia, movie and other posters, Civil War and other military items, toys (including trains), wines and spirits, teddy bears, 78 rpm records, couture clothing, comic books, baseball and other trading cards, lunch boxes, vintage guitars and other musical instruments, sheet music, marbles, music boxes, fossils, saints’ relics, indigenous artifacts, inscribed first edition books, Kentucky Derby mint julep glasses, Mickey Mouse watches and other Disney items, bottle caps, 8-track cassettes, fountain pens, action figures (from G. I. Joe to the Teenage Mutant Ninja Turtles), cookie jars, Hummel statuettes, and more. An avid collector might want to take one or more of their treasures into the coffin.

Miscellaneous. All sorts of items may be buried, as demonstrated by tales of celebrities, including George Burns (three cigars); Humphrey Bogart (a whistle); Harry Houdini (letters from his deceased mother); Tony Curtis (a Stetson hat, an iPhone, his Navy medals, and seven packets of Splenda sweetener); Roald Dahl, the author of Charlie and the Chocolate Factory (a power saw, his snooker cues, and a supply of chocolates); and Leonard Bernstein (a treasured book and important sheet music). See Grave Goods: Famous People, supra.

Uncertainty, Secrecy & Grave Robbing. The prevalence of these requests, and the total values involved, seem unknowable with any precision. It is understandable that these arrangements are kept secret except by archeologists who uncover historical items free from the claims of any living heir or beneficiary—public disclosure could lead to grave robbing, family squabbles, and vitriol on social media. As an example, grave robbers attempted to steal jewelry famously buried with a decedent, but they failed because the decedent’s casket (surrounded by a concrete vault) was nine feet below ground with another empty concrete vault placed on top of it. See Michael Connelly, Robbers Open Grave in Vain Search for Jewelry, L.A. Times, Nov. 14, 1990. The empty vault on top was intended for use when the decedent’s mother died. After the theft attempt, the family planned to add an extra layer of concrete over the decedent’s burial vault. Id.

Law on This Last Request and Grave Robbing

The Only Reported Case on This Topic Focused on Encouraging Grave Robbing. Apparently, only one reported case has decided whether a decedent’s direction to be buried with specific items was enforceable. Strahilovitz, supra, at 800–01 (stating Meksras is the only reported case). A recent electronic search (on Westlaw) using the word “Meksras” revealed no additional cases.

In her will, Eva Meksras directed that she be buried with her “diamonds and other jewelry, together with certain enumerated pictures.” Meksras Estate, 63 Pa. D. & C.2d at 371. The executor (her accountant) failed to insert the diamonds and jewelry in her coffin before she was buried. After the casket was sealed, the court considered whether she should be exhumed and the items inserted. The court did not order that the decedent’s corpse be exhumed to add the diamonds and jewelry. It concluded the direction in Eva Meksras’s will was unenforceable. The court found that as the will was a public document, enforcing those terms would violate public policy because it would encourage grave robbing. The court did not focus on whether grave robbers actually would succeed; instead, the key was whether the direction would encourage grave robbers. The court emphasized the potential harm to the living from encouraging such behavior—possible “desecration, looting, and destruction of burial grounds.” Id. at 372.

Designing and Drafting to Discourage Grave Robbing

More Concrete and Steel. As discussed earlier, in 1977, a court concluded there was nothing illegal about the direction in Sandra Ilene West’s last will that she be buried in her Ferrari. This “famous Ferrari” case likely did not present a serious grave robbing risk because it was made known publicly that after lowering the Ferrari (with Sandra West) into the “9 by 17-foot grave,” the workers covered the Ferrari with concrete. Timothy Fanning, Bury Me in My Ferrari: How a California Socialite Was Laid to Rest in San Antonio, San Antonio Express-News (Mar. 22, 2023) (“[C]rews covered [the Ferrari] with cement to discourage potential looting.”).

When expressing burial wishes, in addition to specifying the particular burial plot in the chosen cemetery, the type of casket, and the arrangements for grave maintenance, the testator could provide detailed directions for a burial vault. In the 1800s, inventors developed burial vaults (and other devices, including spring-loaded guns and landmines) to prevent grave robbery when the thieves generally were after “expensive jewelry or other finery” or to steal the cadaver for medical research. See Todd Harra, Resurrectionists and the Advent of the Burial Vault (excerpted from Todd Harra, Last Rites (2022)). Burial vaults can be made of concrete, reinforced concrete, or steel. Moreover, according to one industry insider, encasing the entire casket in cement might make grave robbing “virtually impossible [as] it would take a long time to get through, even with a pneumatic drill.” Buckland, supra (quoting a “burial expert at Hollywood Forever,” a cemetery, funeral home, and cultural events center).

More recently, many grave robbers tend not to dig at all—instead, they steal the statues, columns, and benches in the cemetery and sell them as garden furniture or decorations at yard sales. Edith Stanley, Today’s Grave Robbers Do Lively Business, L.A. Times (Nov. 21, 1996). Perhaps these robbers would be better described as “cemetery thieves.” Indeed, more recently, it’s often said that the primary purpose for grave liners and vaults is to prevent the coffin from settling or sinking into the ground and making cemetery lawn maintenance more difficult, id., rather than preventing grave robbing.

Using the Language of the Will Itself to Discourage Grave Robbing. A drafter could choose to describe the buried property generally rather than include specifics signaling high resale value. For example, the last will simply might say, “bury me with my engagement ring,” rather than “bury me with my diamond engagement ring that cost over $250,000 40 years ago.” However, in some states the executor may need to provide a detailed inventory to the probate court, and the inventory document may be a matter of public record. See Stahilovitz, supra, at 801 n.73 (indicating that state laws differ); but see Unif. Probate Code § 3-706 (providing that the executor must prepare a detailed inventory with the fair market value of the assets, but the executor merely must provide it to interested parties who request it; filing with the court is discretionary). Thus, in some states, merely concealing the value in the last will may not be sufficient. As mentioned above, the will also can direct the use of a burial vault, or that the casket will be encased in cement, or any other practical steps to discourage grave robbing.

Impairing the Value Before Burial. An additional practical step would be to diminish the resale value of the prized possession in the decedent’s waning moments and highlight that fact in the will and the estate inventory. As explained more fully in the second article on this topic (to appear in a future issue), living owners of property generally are free to destroy (or misuse) their property during lifetime, but the right to destroy at death is more restricted under the public policy doctrine. For those who wish to be buried in their favorite car, they could have the catalytic converter, the engine, the hood ornament, and any other valuable parts removed and sold as parts or as scrap metal. Typically, all the fluids would be drained from the car before burial because of environmental concerns.

In the case of collectibles, the methods for decreasing the resale value will depend on the item, and the client (as a collector) likely will know the best methods. For example, one might think that scribbling on a valuable comic book would greatly reduce its value—would someone really pay a substantial amount for a comic book with mustaches drawn on the faces of the superheroes and the villains? Or would someone really pay big bucks for a comic book with the clause “buried with [the decedent’s name], in the decade of the 2020s, at the XYZ Cemetery in Any Town, State, USA,” written in ink prominently on the cover? Surprisingly, writing on a comic book does not necessarily greatly decrease its value. See Matt Nelson, The Official CGC Guide to Grading Comics 243 (2022) (explaining that on the scale for grading comic book condition from 0.0 to 10.0, a “small amount of writing on the cover, such as a name in pen or pencil, may only prevent a comic from achieving a 9.6 or 9.8”).

In contrast, detaching the cover of a comic book from the staples, or cutting off the back cover or an interior page, can drastically reduce the value. Id. at 152, 158, 183 (providing that the highest grade for a comic book with a detached cover would be 4.0, and a book missing a page often is given a “universal grade of 0.5,” all on a scale from 0.0 to 10.0). As an indication of the difference in resale value of the same comic book at different grades based on the comic book’s physical condition, a copy of Amazing Fantasy #15 (the first appearance of Spider-Man) graded at 9.0 has a price guide value of $404,650; the same comic book at a grade of 2.0 has a price guide value of $13,850. Robert M. Overstreet, 53rd Overstreet Comic Book Price Guide 121 (2023–24 ed.).

Incorporating the Burial Direction in the Will with a Separate Document. The Meksras court rejected the testator’s intent because it was publicly disclosed (in the decedent’s will). One response, discussed below, would be to place the burial instructions outside the will or any other public document. But when it comes to expressing the decedent’s intent at death, wills traditionally have been powerful documents. See In re Estate of Whalen, 827 N.W.2d 184, 195 (Iowa 2013) (Cady, J., dissenting) (“For centuries the last expression of bodily autonomy has been received with solemnity and honored by our laws to the fullest practical extent when declared with the formality of the last will and testament.”). For those seeking the respect given to a will, yet wishing to avoid publicity, an alternative could be including in the last will a reference to another document (such as a letter addressed to the executor) specifying the client’s desired burial arrangements.

A famous case suggests this approach. S.M. Seeligsohn wished to leave $4,000 at death to Esther Cohn but presumably he did not want the bequest to be public knowledge. Simon v. Grayson, 102 P.2d 1081 (Cal. 1940). S.M. Seeligsohn’s last will did not mention Esther Cohn, but it referred to a letter in his safety deposit box, and the letter in the box directed the executor to transfer $4,000 to Esther Cohn at the death of S.M. Seeligsohn. Id. The court ordered the executor to pay the $4,000 to Esther Cohn because (i) the will sufficiently described the letter and (ii) the letter was in existence when a codicil to the will was executed. Similarly, a client wishing to be buried with a valuable possession could specify in the will that certain property would be administered by the executor according to a letter in a specified location.

Planning Completely Outside a Will. Planners praise the trust as a particularly flexible device. See, e.g., Roger W. Andersen & Ira Mark Bloom, Fundamentals of Trusts and Estates 415 (6th ed. 2022). During lifetime, the client could assign the prized possession to the client’s revocable trust and specify in the trust document that the successor trustee must arrange for that specific item of trust property to be placed in the casket immediately before the casket is sealed. Because revocable trusts, in contrast to wills, are not public documents, this could avoid the problem of direct, widespread public disclosure. Earl D. Tanner Jr., Wills v. Trusts, Utah B.J., Oct. 1997, at 18. Nevertheless, trust documents generally must be made available to direct beneficiaries over the age of 25. Andersen & Bloom, supra, at 723–27. As a result, there would be a risk that one or more beneficiaries might publicize the direction on social media or elsewhere. As a commentator noted, this is precisely the type of story that could draw significant criticism on social media. See Hunting, supra.

Other approaches without a will could include the client making a property transfer of the prized possession to a friend or relative subject to a condition that upon the client’s death, the friend or relative would insert the item into the client’s casket for final burial. Although this would require the client giving up possession of the item during lifetime, perhaps the client has two identical (or nearly identical) prized possessions, such as two similar teddy bears or two similar comic books.

Instead of structuring this as the transfer of an interest in property subject to a condition, it might be structured as a contract in which the consideration provided by the recipient would be the promise to arrange for the burial of the item with the client. Regardless of the structure, the arrangement could fail if the purpose is deemed contrary to public policy because of the economic waste. Part 2 (in a future issue) will discuss this and related issues.


An interesting mix of client beliefs, social practices, and factual circumstances can make the enforceability of a last request depend on whether it will encourage grave robbing. An estate planner may not be able to do much about client beliefs and social practices, such as the view that people should be interred undisturbed, and graves maintained, in perpetuity, rather than the view in other cultures that burial is only necessary while the flesh decomposes, after which the bones can be moved to an ossuary. See Rafaela Ferraz, Cemetery Overcrowding Is Leading Europe to Recycle Burial Plots (July 18, 2018) (discussing “raising the dead” and moving the bones to an ossuary after three to five years in Portugal and Greece, the Netherlands (10 to 20 years), Switzerland and Sweden (25 years), Italy (10 to 30 years), Germany (15 to 30 years), and France (10 to 50 years)). Nevertheless, an estate planner may help a client avoid circumstances encouraging grave robbing, particularly (i) suggesting the use of barriers to make grave robbing more difficult and (ii) avoiding any indication in the will or any other public document that the client will be buried with anything valuable.