Monday, December 16, 2013
Minia E. Bremenstul (Louisiana State University, Baton Rouge - Louisiana Law Review) recently published an article entitled, Victims in Life, Victims in Death – Keeping Burial Rights Out of the Hands of Slayers, Wills, Trusts, & Estates Law eJournal, Vol. 9, No. 36 (Dec. 12, 2013). Provided below is the abstract from SSRN:
Nearly all states have “slayer statutes” to ensure that slayers may not inherit property or receive life insurance benefits as a result of their criminal acts, but many states have not extended this prohibition to the power of slayers to legally dispose of their victims’ bodies. Although all states have enacted statutory guidance concerning the order and priority of persons with the right to control final disposition, nearly half lack forfeiture provisions to account for situations in which one of those individuals is criminally responsible for the decedent’s death. States must ensure that disposition rights are not granted to slayers by virtue of poorly crafted disposition of remains statutes. Instead, these statutes should require forfeiture for any person granted the right to control disposition, whether by designation or by law, who is criminally responsible for the decedent’s death. Forfeiture is essential to protect not only a decedent from being victimized a second time by his or her slayer but also the victim’s grieving survivors from being rendered powerless and unable to control the final resting place of their loved one.
This article examines the current state of disposition of remains laws in the United States, identifies the problematic loopholes present in many statutes that permit slayers to control the disposition of their victims’ bodies, and recommends the necessary statutory amendments to keep disposition rights out of the hands of slayers. Part I discusses the evolution of the American slayer rule, as well as its inherent limitation — the victim’s body is not treated as property forming part of the victim’s estate, and thus the slayer rule does not cover the right to control the disposition of a decedent’s body. The slayer’s ability to control the disposition is therefore treated within state statutory regimes governing the disposition of remains. Part II examines current statutory regimes in states without forfeiture provisions and also highlights the deficiencies present in regimes that do call for forfeiture. Part III provides guidance for state legislatures seeking to revise their disposition of remains laws to prevent slayers from potentially having the legal authority to control their victims’ dispositions. In doing so, Part III makes recommendations for determining the proper scope of forfeiture provisions and for safeguarding due process rights. Finally, the Appendix contains a model disposition of remains statute encompassing the statutory provisions necessary to keep disposition rights out of the hands of slayers.