Rights of the Dead

Authors

Kirsten Rabe Smolensky

Abstract

This article examines how decedents are treated across a variety of legal disciplines and asks why the law gives the dead certain legal rights but not others. For example, survival statutes allow certain tort claims to be brought after death, most non-personal contracts (except those personal in nature) survive death, and at least one court has suggested that the dead have a nascent constitutional right to reproductive liberty. In contrast, testamentary directions concerning the disposal of property are sometimes ignored and some states disallow posthumous right of publicity or defamation claims. Many legal rules favoring the dead could be explained simply as an attempt to control, incentivize, punish and empower the actions of the living. Yet, such an explanation is incomplete because it ignores cultural norms and an innate desire among the living to honor the wishes of the dead even when doing so may harm the interests of the living. This article argues that consistent use of "rights" language by legislatures and courts is evidence not only that such cultural norms exist, but also that they guide the development of legal rules in very important ways. Where granting posthumous rights is practical, the article argues that judges and legislators should do so because it humanizes the law, making it more accessible to the general public.

In building this thesis, the article relies on both Hohfeldian notions of legal rights and the extensive philosophical literature exploring the necessary characteristics of legal rights-holders. The article also considers a wide variety of legal cases which seem to confer legal rights on decedents, drawing particular attention to a few well-settled, common legal rules. Using these examples, the article develops a series of principles that will help judges, legislators and legal scholars think about the legal treatment of decedents' interests, including the way the law should treat decedents' legal interests. The article also explores what it means to be a legal rights holder, how posthumous rights can be enforced, and some of the agency problems created when an estate acts on a decedent's behalf.

Recommended Citation

Smolensky, Kirsten Rabe (2009) "Rights of the Dead," Hofstra Law Review: Vol. 37: Iss. 3, Article 4.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol37/iss3/4