Does Your Client Dread Being Dumped Down the Sewer at Death?
Part 1 detailed why a client might have nightmares. Until a few years ago, the United States essentially was a binary death care country. Regardless of the circumstances, you likely would have been buried or cremated by a licensed funeral director in a respectful manner. See Hilary Young, The Right to Posthumous Bodily Integrity and Implications of Whose Right It Is, 14 Marq. Elder’s Advisor 197, 252 (2013) (“Almost everyone is either buried or cremated after death.”). Whatever ill will survivors harbored against a decedent, it seemed unlikely they would take it out on the corpse.
Now, without some protective planning, a disgruntled, mischievous, or environmentally zealous surviving spouse or next of kin might have the decedent boiled in lye and poured down the sewer (legal in 28 states), composted (legal in 10 states), or left outside to rot for weeks or months, with the insects, at a scientific research “death farm.” Part 1 also briefly discussed a possible security device—adding a financial incentive clause (a/k/a bribe) in a last will or trust to encourage a designated survivor to carry out the decedent’s cadaver disposal wishes.
Goals of This Article
This Part 2 discusses the need for a testamentary financial incentive in these situations, the legality of incentive clauses generally, and practical planning and drafting considerations. This Part 2 also considers whether a financial incentive clause would be void for being contrary to public policy. In addressing this legal topic, this Part 2 examines the broader philosophical, practical, and societal questions of whether the living or the dead should decide the fate of cadavers.
The Need for a Financial Incentive Clause for Cadaver Disposition
As mentioned in Part 1, although state laws differ, just including a client’s cadaver disposition instructions in the last will may not be sufficient to save your client’s cadaver from the sewer or the compost heap. Leading legal authorities and commentators refer to the testator’s cadaver instructions as a mere “hope,” Ray Madoff, Immortality and the Law 18 (2010), or “merely a request with probative effect.” B.C. Ricketts, Annotation, Validity and Effect of Testamentary Direction as to Disposition of Testator’s Body, 7 A.L.R.3d 748–49, § 1(b) (1966).
As a matter of common law, the testator’s lack of control traces back at least to the landmark 1882 English opinion in Williams. v. Williams, [1882] 20 Ch. 659 (Eng.), in which the court basically proclaimed that nobody owns a body. In Williams, the decedent directed that he should be cremated; instead, his family promptly buried him. In an action to have him exhumed and cremated, the court declared that the decedent’s directions had no legal authority because there can be no property in a dead body, and therefore it is impossible that by will or any other instrument a body can be disposed of. Id. at 661. A corollary to this principle is that the surviving spouse (or the next of kin if there is no surviving spouse) has a quasi-property right in the decedent’s cadaver. This right allows the spouse or next of kin to exercise discretion in choosing any lawful method of disposition. Id.; see also Alix Rogers, Unearthing the Origins of Quasi-Property Status, 72 Hastings L.J. 291 (2020) (tracing the roots of this doctrine in the laws of the US states); but see Francis Foster, Individualized Justice in Disputes over Dead Bodies, 61 Vand. L. Rev. 1351, 1390 (2008) (arguing that the majority of US courts rejected this approach).
The view that the decedent’s directions in a last will are merely a “hope” is supported by statutes providing that if the decedent fails to designate an agent to dispose of the cadaver, the surviving spouse (or the next of kin if there is no surviving spouse) has the right to choose the method of disposition. See, e.g., In re Estate of Whelan, 827 N.W.2d 184, 187 (Iowa 2013). Furthermore, even if a state law regime provided that the decedent’s instructions would be binding, they would be ineffective if there were no surviving person to fight for the decedent’s wishes. Madoff, supra, at 18 (“[State laws] provide no protection when [the] people who were willing to carry out the testator’s direction are missing” or are unwilling or unable to protect the cadaver); Daniel Sperling, Posthumous Interests: Legal and Ethical Perspectives 145 (2010) (“Bodily testaments are not compelling unless voluntarily enforced by survivors.”).
Even if an executor or a court official tried to uphold the will and fight for the decedent’s clearly expressed wishes, their prospects for success against a surviving spouse or next of kin might be bleak. See, e.g., Holland v. Metalious, 198 A.2d 654, 655 (N.H. 1964) (rejecting the instructions of the decedent, who wrote the best-selling novels Peyton Place and Valley of the Dolls). If the decedent has already been buried against the decedent’s wishes, there is a strong common law preference for not exhuming a body. See, e.g., Smart v. Moyer, 577 P.2d 108, 110–11 (Utah 1978) (relying on the ancient principle that a “person, once buried, shall not be exhumed except for the most compelling of reasons”). Also, if the corpse has been cremated against the decedent’s wishes, a court order to bury the entire body would be futile (although the cremains could be buried or treated respectfully).
Practical Planning and Drafting Considerations for Financial Incentive Clauses to Protect a Cadaver
As the decedent’s cadaver-disposition directions stated in a last will generally are a mere “hope,” the testator seeking nightmare relief needs to engage in more detailed planning.
Choosing the Sepulcher Agent and Successors. A 2019 survey found that 46 states have procedures allowing a testator to appoint an agent with authority to decide cadaver disposition. Tanya D. Marsh, You Can’t Always Get What You Want; Inconsistent State Statutes Frustrate Decedent Control over Funeral Planning, 55 Real Prop. Tr. & Est. J. 147, 163 (2020). Perhaps the agent could be called a “sepulcher agent.” A preliminary step would be choosing and effectively designating a sepulcher agent under the procedure permitted by applicable state law.
In structuring the arrangement, the client should provide the financial incentive to the same person with legal authority to dispose of the cadaver under state law (normally, the sepulcher agent). Otherwise, the person with the financial incentive may be forced to argue that the decedent’s directions in the last will have primacy under state law, which may be a losing argument. For example, in Estate of Whalen, the Iowa Supreme Court rejected the deceased wife’s clear instructions to bury her in Montana and instead allowed the surviving husband to pick the state of burial. 827 N.W.2d 184, 187–88 (Iowa 2013).
Under the applicable state law, it may be possible to designate one or more successors. See, e.g., 755 Ill. Rev. Stat. (ILCS) § 65/10. This may be advantageous because the decedent’s first choice may predecease, become mentally disabled, or be unwilling to act when the time comes.
Document Choices. An important planning point is choosing the documents to (1) designate the sepulcher agent, (2) specify the decedent’s preferences for cadaver disposition (and related wishes concerning embalming, a celebration of life or a wake, a funeral or other memorial services, and related matters), and (3) provide for the financial incentive payments to the designated agent. The applicable state statute may provide a list of possible documents for designating the agent. See, e.g., id. § 65/40(a) (listing a last will, a prepaid funeral or burial contract, a health care power of attorney, or a signed and notarized document following a statutory form). Whatever document is chosen for specifying the decedent’s wishes, it needs to be available promptly after death. An applicable state statute may provide that these terms of a last will can be effective immediately even if the will has not been admitted to probate yet. See, e.g., id. § 65/40(b).
Presumably the primary document controlling the disposition of the decedent’s wealth will be the document providing for the payment of the financial incentive to a successful sepulcher agent. If payment will not be delayed for multiple years, presumably the financial incentive clause could be a contingent bequest under the testator’s last will. This could be appropriate if the testator is confident that the remains (or cremains) will not be disturbed in the future. Bequests under a last will are likely to be paid when the probate estate closes in a year or two after death (unless the executor is willing to make an early distribution). For example, if the decedent specified burial at a particular cemetery plot, the testator may be comfortable with an outright payment of the financial incentive to the sepulcher agent when the probate estate closes and final distributions are made. This confidence may be based, in part, on the “well-recognized principle . . . that the disinterment of a body once laid to rest is not favored.” Frank D. Wagner, Annotation, Enforcement of Preferences Expressed by Decedent as to Disposition of His Body After Death, 54 A.L.R.3d 1037–67, § 5(b) (1973).
On the other hand, if the testator is concerned the sepulcher agent may exhume or otherwise disturb the corpse (or cremains) in the future, then the testator might prefer to pay the incentive from a revocable trust. The financial incentive arrangement could become a separate trust upon death that would authorize the trustee to make periodic payments (based on a schedule) to the sepulcher agent as long as the decedent’s wishes were followed. Using a trust would allow the probate estate to close within a reasonable time, while the incentive trust continues for the sepulcher agent’s life.
Amount. The amount of the incentive needs to be sufficient to affect behavior, such as with a no-contest clause in a will or trust. See Roger W. Andersen & Ira Mark Bloom, Fundamentals of Trusts & Estates 166 (6th ed. 2022). The amount of the financial incentive might be based, in part, on the expected difficulty in carrying out the decedent’s wishes. If a client simply wishes fire cremation, use of a decorative urn, and burial of the urn in a designated mausoleum or cemetery plot, then the amount may not need to be as substantial. A related factor could be the degree of opposition expected from the surviving spouse (or next of kin). To create a financial incentive, the document would provide for a gift-over of the incentive amount to another beneficiary, perhaps a charity, if the sepulcher agent fails to carry out the testator’s directions.
Prepayment. Another step could be prepaying a funeral home, crematorium, or other appropriate provider for the desired disposition. This would be strong evidence of the decedent’s intent. If the sepulcher agent also is the residuary beneficiary under the last will or trust, it could provide a further economic incentive for the agent because the cost of any other disposition presumably would reduce the residuary bequest. One commentator has written an entire law review article on prepaying disposal costs and persuasively argues that the testator’s prepaid arrangements should automatically be given top priority in deciding what should be done with the cadaver. See Victoria J. Heneman, Prepaid Death, 59 Harv. J. on Legis. 329, 376–77 (2022).
Description of Disposal Wishes, Proof to Obtain Bribe, and More
The client will want to clearly describe his or her wishes. This should avoid challenges that the directions are too vague or ambiguous to follow. A simple direction to “bury me in the XYZ Cemetery” may lead to disputes about the need to embalm, the type (and cost) of a casket, the use of a burial vault, celebration of life or wake arrangements, conducting a religious or other memorial service, and related matters. The testator may want to indicate some things that are essential and must be satisfied for the sepulcher agent to receive the bonus, and some things that are merely preferred if circumstances permit.
In addition, the financial incentive clause should specify what needs to occur for the agent to receive the bonus. In particular, there could be specific instructions for the executor (or the trustee of the trust) to make the payments upon receipt of certain documents, such as receipts from a funeral home, crematorium, or cemetery. The drafter may need to anticipate contingencies. For example, if the testator wants his or her body donated to the XYZ School of Medicine, presumably there should be a contingency plan if the XYZ School will not accept the cadaver, perhaps because the decedent died from a particular infectious disease. The last will or trust likely should provide for payment or reimbursement of any reasonable legal fees and other expenses the agent may incur in attempting to carry out the decedent’s wishes.
Turning to the Legal Issue: The Use of Financial Incentive Clauses Generally
In a last will or trust, a client may use a financial incentive clause to exercise a level of dead hand control over beneficiaries. Viewed negatively, “[o]ne can imagine a large hand rising—in horror movie style—out of a grave and pointing the direction survivors should take or hold them back from where they want to go.” Andersen & Bloom, supra, at 311.
A drafter may design an incentive to encourage a beneficiary to obtain a college or advanced degree, or remain free from illegal drugs, or obtain and work a full-time job, or achieve or maintain any other measurable goal or status. See, generally, Lauren J. Wolven, Incentive Trusts and Planning Across Generations, ALI-ABA CLE Course Materials, June 17–21, 2019. Many reported cases involve the enforceability of incentives to influence religious or marital decisions. Martin D. Begleiter, Taming the “Unruly Horse” of Public Policy in Wills and Trusts, 26 Quinnipiac Prob. L.J. 125, 126 (2012); see also Jeffrey G. Sherman, Posthumous Meddling: An Instrumentalist Theory of Testamentary Restraints on Conjugal and Religious Choices, 1999 Ill. L. Rev. 1273.
The Enforceability of Incentive Clauses—The Law of Testamentary Bribes
A preliminary step in evaluating a testamentary incentive clause can be determining whether the clause is an outright gift at death or, instead, exerts a “continuing influence” on the beneficiary’s behavior beyond the time of death. Sherman, supra, at 1277. When making outright gifts, US testators enjoy great testamentary freedom. Aside from protective provisions for a surviving spouse or a minor or disabled child, testators may dispose of their property as they wish. A court cannot “question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate . . . property.” Restatement (Third) of Property, Wills and Other Donative Transfers § 10.1, cmt. (Am. Law Inst. 2003). Generally, a court may invalidate a bequest or outright trust distribution at death only if it is capricious, excessively vague, ambiguous, impossible to carry out, or against public policy. Wolven, supra, at V.B.2 & 3.
A bequest is not capricious if it “satisfies a natural desire which normal people have.” Restatement (Third) of Trusts § 124, cmt. g (Am. Law Inst. 2003) (adding that a bequest may be valid even if “no living person benefits from its performance”). If a testator desires a traditional burial or fire cremation, presumably that would not be capricious, as these are the methods used by 95 percent of decedents. See Nat’l Funeral Dir. Ass’n, 2022 NFDA Cremation & Burial Report 7 (July 2022) (reporting that 59.3 percent are cremated and 35.7 percent are buried). Also, these methods generally should not be impossible to carry out because they are so common. In addition, such an instruction would not be ambiguous or excessively vague if described in adequate detail in the decedent’s last will. The question whether these financial incentive clauses will be void as contrary to public policy is the subject for the balance of this article.
The Public Policy Doctrine and Financial Incentive
A court may declare a last will or trust provision unenforceable under the public policy doctrine if it violates a constitution, statute, or common law rule, Begleiter, supra, at 141–42, or if the court determines it is injurious to the public welfare. See Andersen & Bloom, supra, at 368 n.25. For example, an incentive such as “I devise Blackacre to A, if A has killed B before my death, but if A has not killed B . . . then I devise Blackacre to C,” would be void as against public policy. Sherman, supra, at 1279.
Examples of when an incentive exerting a continuing influence after the testator’s death violates public policy could be clauses encouraging the beneficiary to divorce a spouse or designed to prevent the client from ever marrying. See, e.g., Hall v. Eaton, 631 N.E.2d 805, 808 (Ill. App. Ct. 1994) (upholding clause encouraging divorce only because testator was trying to protect daughter from the spending habits of her husband by leaving property in trust until they divorced or until the husband died); Liberman v. Liberman, 18 N.E.2d 658, 662 (N.Y. 1939) (invalidating a clause that interfered with the fundamental right to marry). The public policy doctrine has been called the “unruly horse” of the law because the results of a particular case can be so difficult to predict. See Begleiter, supra, at 125.
Will a Cadaver Disposition Incentive Clause Be Void for Violating Public Policy?
If the type of incentive clause proposed in this article would be valid, it could shift the balance of power from the surviving family (spouse or next of kin) to the testator. Not only family members, but also funeral homes, crematoriums, and cemeteries will have an interest in this debate. These commercial entities want certainty in knowing who has authority post-death to make cadaver disposition choices. Marsh, supra, at 161. As a result, an aggrieved party may challenge this type of clause, perhaps under the doctrine of public policy. At the heart of the question is who should decide the fate of a human cadaver.
The Needs for Speed and Certainty
Any legal approach should address the needs for speed and certainty. In the United States, cremation, burial, or other disposition tends to occur within one week of death—maybe two weeks if there are key out-of-town relatives or other special circumstances. How Long Can You Delay a Funeral?, Beyond the Dash (May 12, 2021), https://tinyurl.com/5mxxkchx. The schedule is very different when distributing the decedent’s property under the decedent’s last will. It may take weeks, or perhaps a month or more, simply to file the application and for the court to issue letters testamentary to the executor, who then has authority to begin dealing with the decedent’s property. See, e.g., Hon. Albert J. Emanuelli, The Surrogate’s Corner, 25 Westchester B.J. 29 (1998) (regarding a month-and-a-half delay). The timing difference suggests a difficulty if the terms of the decedent’s will are important, but on further contemplation, switching decision makers to the decedent actually facilitates speed and certainty. If the decedent clearly designated a sepulcher agent in writing according to the applicable state law, that agent could notify all interested parties promptly after the testator’s death. The testator might even provide the funeral home or crematorium with the written designation when prepaying for the services. See, e.g., 755 Ill. Rev. Stat. § 65/40(a) (allowing a decedent to designate an agent directly in a “prepaid funeral or burial contract”).
Societal and Philosophical Considerations
The ancient Greeks and Romans embraced the practice of following a decedent’s cadaver disposal wishes. Foster, supra, at 1390; Marsh, supra, at 157. In 1936, a leading scholar wrote: “[A]ll civilized nations, ancient and modern [have shared] the sentiment so universal . . . (i) that the dead shall repose [free from] profanation; (ii) [promoting] . . . morality and decency; and (iii) of proper respect for and observation of the wishes of the departed.” Percival Jackson, The Law of Cadavers 170 (1936) (emphasis added).
As a society, what we do with human cadavers says a lot about us. Our traditional concern for human cadavers has been described as a “mark of human civilization” and a “defining human trait.” Keith Eggener, Building on Burial Ground, Places J. (Dec. 2010), https://tinyurl.com/46f32vuf; Ann M. Murphy, Please Don’t Bury Me in That Cold, Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains, 15 Elder L.J. 381, 400 (2007). Giraffes, dolphins, elephants, gorillas, whales, and other animals reportedly grieve and engage in “death rituals,” see Jason G. Goldman, Death Rituals in the Animal Kingdom, BBC (Sept. 18, 2022), https://bbc.in/2XRILsm, but burying and cremating apparently are uniquely human practices.
Erudite philosophers have pondered this subject. One has written an entire book about the postmortem interests of the dead, including cadaver disposition concerns. Sperling, supra. In promoting organ transplants from the dead, some philosophers maintain that the dead have no interests or rights and that showing concern for your cadaver is “selfish and superstitious.” See e.g., John Harris, Wonder Woman or Superman: The Ethics of Human Biotechnology 102 (1992); see also Sperling, supra (citing philosopher Walter Glannon).
Other philosophers maintain that a testator’s interests (and rights) can continue at least as long as the person is remembered as a unique individual. Sperling, supra, at 85–86. Consistent with this view, some states recognize a cause of action if a living person “blackens the memory of the dead.” Id. at 301 (listing Colorado, Georgia, Idaho, Nevada, and Oklahoma). In addition, during their lifetimes, many people are greatly concerned about their legacies, including their post-death reputations. Sebastian Ocklenburg, 5 Reasons We Want to Be Remembered, Psych. Today (Dec. 20, 2022), https://tinyurl.com/ywksx4vx.
Conclusion
Clients may care more about their cadavers than their property. Sperling, supra, at 45 (“[I]t seems unambiguous that a person’s body is one of the most precious things about which she cares, certainly more than her real property.”). “Who steals my purse steals trash.” William Shakespeare, Othello, act 3, scene 1.
Nobel peace prize winner Bishop Desmond Tutu’s choice of aquamation for his own cadaver in 2021 brought substantial publicity to the environmental benefits of the method. See, e.g., Karen Garcia, Become a Diamond or Get Launched into Space—7 Alternatives to Burial or Cremation, L.A. Times (May 19, 2023), https://tinyurl.com/ypc4awjz. Nevertheless, does your client want to risk being remembered as the guy who was dumped down the sewer by his kids? If not, a financial incentive clause may be helpful.
