Article on Disposition of Remains Laws

Minia E. Bremenstul (J.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University) recently published an article entitled, Victims in Life, Victims in Death—Keeping Burial Rights Out of the Hands of Slayers, 74 La. L. Rev. 213 (Fall 2013).  Provided below is the introduction to the article:

It often takes tragedy to bring about change. In 2009, Constance Shepherd was brutally murdered at the hands of her husband, Stephen Shepherd. Her body was found in their New York home-her throat slashed by a medieval-style sword. While still grieving the loss of their loved one, Constance’s surviving family members were victimized yet again: As Constance’s surviving spouse, Stephen Shepherd had the sole right under New York law to control the disposition of her remains, despite being charged with her murder. Contrary to her family’s wishes, Shepherd left Constance’s body in the morgue for more than a month before having his attorney cremate and bury her remains near his favorite fishing spot, hundreds of miles away from her family and home in New York.

The public outcry over Constance Shepherd’s story and other similar tragedies prompted the New York State Legislature to amend its disposition of remains law in order to prevent murderers from controlling the disposition of their victims’ remains. The law prohibits any person who, “at the time of the decedent’s death, was the subject of an order of protection protecting the decedent; or . . . [who] has been arrested or charged with any crime . . . allegedly causally related to the death of the decedent” from having “the right to control the disposition of the remains of the decedent.” While New York has closed its statutory gap that allowed “slayers” to control the burial of their victims, many states have not yet remedied this alarming oversight in the law. Consequently, in some states, murderers like Stephen Shepherd continue to have the ability to control the location, timing, and method of the disposition of their victims’ remains.

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. Furthermore, even state statutes that do have forfeiture provisions often do not provide adequate coverage. First, some provisions do not encompass all victim-offender relationships; several address only certain categories of familial homicides, like spousal murders, while others do not provide for forfeiture if the deceased specifically designated the slayer to act as his or her agent for disposition. Second, many provisions only contemplate forfeiture once criminal charges have been brought, ignoring the timing considerations involved with making disposition decisions as well as establishing probable cause for an arrest. Third, statutes often do not provide an individual who has forfeited the right of disposition the opportunity to challenge the forfeiture in a timely manner.

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. As long as an individual subject to forfeiture is given notice and an opportunity to be heard when forfeiture takes place, the rights of all parties-the accused, the surviving family members, and the victim-will be taken into account, and the right of disposition will be in the proper hands.

This Comment 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.