Does the Decedent have Rights?

Does the  Decedent have Rights?

 Many legal rules suggest that the dead do not have rights. Often, the dead cannot marry,1 divorce, or vote. The executor of an estate cannot sue for the libel or slander of a deceased person. And the right to medical privacy substantially erodes at death, allowing family members to obtain sensitive information about a decedent’s medical conditions. On the other hand, various legal institutions have spent considerable time trying to protect the rights of the dead. As a result, most testamentary distributions, burial requests, and organ donation designations are valid even if they contradict the preferences of the living. Certain destructions of the property requested in wills are honored even though they may hurt the living. Some states even statutorily recognize a posthumous right of publicity, and recent case law suggests there may be a posthumous right to reproductive autonomy. This Article asks why the law gives decedents certain legal rights but not others. While many legal rules favoring the dead may be explained simply as an attempt to control the behaviors of living persons, such an explanation is incomplete because it ignores cultural norms, including an innate desire among the living to honor the wishes of the dead even when those wishes negatively impact their own interests. The fact that courts and legislatures often use “rights” language when creating legal rules that benefit decedents’ interests suggests that the desire to honor the wishes of the dead does not spring solely out of a self-interested desire to have one’s own wishes honored at death. The use of this language would be unnecessary if the true goal of a proposed legal rule is to ultimately control the actions of the living. While it is not unreasonable to think that courts sometimes use the wrong language in opinions, judges consistently use rights talk in cases involving benefits and harms to decedents. Consistent use of rights language, therefore, suggests that a series of social and cultural norms guide judges and legislatures to honor and respect the dead, particularly where the concomitant harms to the living are minimal. This Article argues that while legal rules affecting the dead often have a practical aspect, one of the primary, and yet unrecognized, forces driving the creation of these legal rules are cultural norms, including dignity and respect for decedents’ wishes. In reaching this conclusion, this Article adopts an Interest Theory approach to rights. Interest Theory recognizes persons currently incapable of making choices, such as the mentally incapacitated and infants, as potential right-holders.2 Using Interest Theory, this Article argues that the dead, although unable to make real-time choices, are capable of being legal right-holders. Furthermore, certain interests, such as the interest in seeing one’s offspring survive or the interest in one’s reputation, can survive death. When these interests are protected by legal rules, the dead are granted de facto legal rights that can be enforced against the living. While it is true that only a subset of interests may survive death, and even a smaller subset receive legal protection, death does not necessarily cut off all interests, and consequently, it does not end all legal rights. Recognition of posthumous legal rights gives the dead significant moral standing within our legal system, as would be expected if lawmakers are driven by a desire to treat the dead with dignity. The law also strives to honor a decedent’s wishes and to protect his interests because society has chosen, within limits, to adhere to the principle of autonomy. This is why courts often consider a decedent’s wishes when determining the disposition of his corpse or property.3 Of course there are legal limits to autonomy, even for the living, and the law is constantly struggling with the exact boundaries of these limits. With the dead, autonomy is more limited than with the living, both because no individual can speak out contemporaneously about the decedent’s desires and because the ability to make choices and change preferences dies with the decedent.

https://law.hofstra.edu/pdf/academics/journals/lawreview/lrv_issues_v37n03_cc4_smolensky_final.pdf