IS THE LAW OF THE BODY A BODY OF LAW?
Copyright 2004 by James W. Martin, Esq.
Published in
The Florida Bar News, June 1, 2004
I remember studying Florida Jur for answers to mundane
questions that budding probate lawyers ask. Questions such as, "Who owns a
deceased person's body?" I recall Florida Jur saying nobody owns a dead body,
but the next of kin have a right to decide how to dispose of it. It cited a
case or two, but no statute. There was not much of a body of law for the law of
the body back then.
Today, as aging Baby Boomers watch the Schiavo case
on national news and ponder their own end-of-life decisions, the question of who
owns a deceased person's body begs for the black-letter law of statute. The
2004 Florida Legislature has answered their pleas by enacting Senate Bill 528
effective October 1, 2005, to amend Florida Statutes Chapters 470 and 497
governing the funeral and cemetery industries. Under the new law, a "legally
authorized person" will be empowered to instruct funeral directors on
disposition of dead bodies.
SB 528 adds a definition of "legally authorized person" to
Florida Statutes Section 497.005 by listing a series of persons of various
priorities. The first person in the list of priorities is the deceased person
himself or herself. Probate lawyers call this person the decedent. Since no
longer living, the new law empowers the decedent by recognizing "written inter
vivos authorizations and directions provided by the decedent." This makes
sense: if someone goes to the trouble of visiting a funeral home and writing out
instructions for disposition of his or her body after death, their instructions
ought to be followed.
Unfortunately, the new law does not say whether a direction
in a will is allowed for this purpose. Many people, lawyers and judges
included, would expect the will to be a logical place for someone to state their
post-death body disposition wishes. However, a will is testamentary in nature
and is not effective until death, so it is arguable that it is not inter vivos.
Since the new law requires an inter vivos direction, a direction in the
decedent's will concerning disposition of his or her body after death might not
be valid under this new law. This would, perhaps, be contrary to legislative
intent. It would certainly be contrary to existing case law which at least
implies that a decedent has a testamentary right to decide on disposition of the
body. (See below.)
The second "legally authorized person" in priority is the
surviving spouse, and the third in priority is a son or daughter who is at least
18 years old. This is interesting because the Florida Probate Code provides
that the heirs of a deceased person who dies intestate (without a valid will)
are generally the surviving spouse as to half the estate and the lineal
descendants (children, grandchildren, etc.) as to the other half. Thus, the
surviving spouse shares the decedent's property equally with the children under
the Florida Probate Code. The new law treats disposition of the decedent's body
differently by clearly stating that the surviving spouse alone is the "legally
authorized person" to decide on disposition of the body if the decedent left no
written inter vivos authorization or direction.
However, there is a twist that favors the children and will
surely give their lawyers room for argument. The new law adds a subsection to
Florida Statutes Section 406.50 (unclaimed bodies) that says, "In the event more
than one legally authorized person claims a body for interment, the requests
shall be prioritized in accordance with [Florida Statutes] s. 732.103." You
might think this is the statute that says the spouse gets half and the children
get the other half. That is probably what the Legislature thought. But it's
not. Florida Statutes Section 732.103 says: "The part of the intestate estate
not passing to the surviving spouse under s. 732.102… descends…[t]o the lineal
descendants of the decedent." Thus, the new law has the effect of saying that
if more than one legally authorized person claims a body, the spouse is not
counted in determining priority, and the children are the ones who get to
decide, which is directly in conflict with the new law’s definition of "legally
authorized person."
Was all of this really necessary? Was it important for the
Florida Legislature to try to codify the law of the dead body? Was it
attempting to change case law?
Well, I went back to the old cases and here is what I
found. It was way back in 1950 that the Florida Supreme Court cited Am.Jur.,
Dead Bodies, and said: "It is well settled that, in the absence of testamentary
disposition to the contrary, a surviving spouse or next of kin has the right to
the possession of the body of a deceased person for the purpose of burial,
sepulcher or other lawful disposition which they may see fit. ...And the invasion
of such right by unlawfully withholding the body from the relative entitled
thereto is an actionable wrong, for which substantial damages may be recovered."
Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950).
As everyone knows, possession is nine-tenths of the law,
so recognition of a right to possession might be a form of property right. It
is at least such a strong right that the Florida Supreme Court held its invasion
to entitle the relatives to substantial damages. But is it a property right in
the same way that owning a car or a house is a property right?
The Florida Supreme Court examined this question at length
in 2001 and concluded that it was kind of like a property right. The court
said, "Based upon these statutory rights of the next of kin in their dead
relatives' bodies, along with the case law on this issue, we conclude that in
Florida there is a legitimate claim of entitlement by the next of kin to
possession of the remains of a decedent for burial or other lawful disposition.
We also find that referring to the interest as a 'legitimate claim of
entitlement' most accurately describes the nature of the interest." Crocker
v. Pleasant, 778 So.2d 978 (Fla. 2001). The Court earlier in the opinion
noted that, "This conclusion is consistent with the approach of other courts
that have found that this right constitutes a legitimate claim of entitlement or
a quasi-property interest."
The Crocker court explained a quasi-property
interest by quoting Lawyer v. Kernodle, 721 F.2d 632 (8th Cir. 1983):
"In the sense in which the word "property" ordinarily is used, one whose duty it
becomes to bury a deceased person has no right of ownership over the corpse;
but, in the broader meaning of the term, he has what has been called a "quasi
property right" which entitles him to the possession and control of the body for
the single purpose of decent burial. If the deceased person leave [sic] a widow,
such right belongs to her…"
Of course, the Crocker court noted in footnote 10:
"Unlike other traditional property interests, however, there is no recognized
right to possess the remains of a deceased relative for commercial purposes."
Well, perhaps the cases are a bit confusing and do take
some time to read. They do not set out in black and white in one place a list
of persons who have the actual quasi-property right to decide the disposition of
a deceased person's body. It would probably be helpful to funeral directors if
the cases or statutes had such a list that was clear and not ambiguous. While
the new law is a step in that direction, it appears to have some glitches that a
future Legislature will need to address.
As for whether dead bodies are someone's property, it's a
good thing they're not. If they were, the Legislature would tax them.
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