Jones on Anna Nicole and Disposition of the Dead

James T.R. Jones (Brandeis School of Law) has posted Anna Nicole Smith and the Right to Control Disposition of the Dead on SSRN.  Here's the abstract:

The death of Anna Nicole Smith has highlighted an ancient legal issue--who decides the place and method of disposal of the bodies of the dead. From antiquity, the law was ordinarily careful to honor the written or oral directions of the deceased. If a decedent did not express a preference, then burial was determined by the surviving spouse, and if there were none by the next of kin. In the Smith case, a dispute arose between her mother and the guardian of her infant daughter over where she would be buried. A Florida court ultimately effectively ignored their arguments and chose the place where Smith clearly orally had said she wanted to be buried. The abstracted article concluded that Kentucky would reach a like result, as there the express wishes of the decedent, testamentary or otherwise, control disposition of a body. Attorneys should encourage their clients to state, preferably in writing but at least orally, their choice for burial arrangements.

Ben Barros

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