Tanya D. Marsh has made available for download her article “You Can’t Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control Over Funeral Planning.” The Abstract is as follows:
American law regarding the status, treatment, and disposition of human remains is essentially state law. There is a significant base of common law which reflects an adaptation of seventeenth century English, Protestant social norms to the American colonial experience. Those norms were promoted and reinforced by legal precedents from English common and ecclesiastical law, but filtered through the practical challenges faced by the colonists. Beginning in the early 20th century, state legislatures began enacting statutes that supplemented and formalized aspects of the common law, but which did not completely replace it. There has been little uniform law activity in this area, so while the common law is fairly coherent and consistent, state statutes vary widely.
This irregular transition from common to statutory law has complicated and frustrated the common law right to control one’s own remains by inconsistent state statutes that require decedents to comply with strict formalities or even prohibit decedents from expressing their preferences. An analysis of these statutes and their impact suggests that there was no deliberate decision to undermine the common law principle. Instead, the episodic derogation of the common law principle appears to be the result of a focus on other policy choices.
Parts I and II of this article provides the background necessary to understand these problems. Part I includes a brief history of the law of human remains in the United States. Part II summarizes the modern common and statutory law regarding who has control of a person’s body after death, and concludes with a discussion of the options available to modern Americans for the disposition of their remains.
Part III examines three issues caused by the modern statutory regime. First, many state statutes create unnecessary issues due to their formalistic requirements. Second, the lack of consistency between the states is problematic because although we ultimately cannot control where we die (unless we never leave home) and cannot reasonably make arrangements for death in all 50 states, the law of the state in which a person dies appears to govern the disposition of their remains. Third, conflicts between common law principles and statutes create uncertainty and lead to litigation. It is not surprising that there are disconnects between the common law and statutory law since the law of the dead receives little attention from scholars and legislators. But this uncertainty wastes judicial and personal resources while failing to protect personal freedom.
The included Appendix includes a complete list of all personal preference and designated agent statutes in the United States as of December 31, 2017, including excerpts of relevant language.
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.