The legal subjectivity of a person is diminished after death. But it would not be entirely correct to say that it ceases. Although when someone dies, they cannot continue to influence the outcome of anything by means of further actions, there is a number of legal acts that, when carried out while the person was still alive, will be legally binding. Furthermore, the identity and memory of a person continues to exist after death, resulting in a number of legal consequences. We will consider some examples of how the wishes and status of a natural person may be given posthumous treatment.
Writing a will
A last will and testament is one of the most obvious manners in which one may give effect to one’s wishes after their death. A will specifically concerns who will inherit a person’s property or how it may be alternately disposed of, as the case may be. However, it can also cover other issues, particularly the designation of a guardian for one’s minor children. As an example, when pop singer Michael Jackson died in 2009, he designated his mother to take care of his children, but did not include as guardian his father, who had been abusive to him and his brothers.
In common law jurisdictions, a person will typically be able to leave their property to whomever they want (subject to the possibility that someone will contest the will), but in many civil law jurisdictions, a surviving spouse or child will be entitled to a certain portion of one’s assets.
Regulating disposal of the body
When a person dies, their family or executor will have to make decisions about how to lay the person’s remains to rest. Some of the main questions covered by this include: -Should the body be buried? Cremated? Given for medical research? -What will happen at the funeral? Or will there even be a funeral? -In what place will the remains be buried? In the case of cremated remains, will they be buried, placed in a columbarium, dispersed or kept at home?
In these matters, which fall under the blanket term of “disposition of remains”, the family will usually follow the wishes of the deceased if they are known. The question is, can a person, while still alive, make plans for the disposition of their remains that their family cannot change? This widely varies from jurisdiction to jurisdiction. In Quebec, for example, Article 42 of the Civil Code specifically lays down that a person of full age may determine the nature of their funeral and the disposition of their body, whereas in Michigan, the law leaves the final decision to the next-of-kin. On top of that, certain specific decisions may fall outside the principles laid down by general provisions. For example, a hospital may have a policy of always asking the permission of the family before performing the removal of an organ donor’s organs.
Posthumous criminal pardons
One way in which respect is paid to a person’s memory is by granting a posthumous criminal pardon to someone who was either wrongfully convicted or who was subject to other exceptional circumstances. Recently, there have been several interesting cases of posthumous criminal pardons, including: -Viola Desmond. In 1946, this Black beautician from Nova Scotia refused to sit in the blacks-only section of a movie theatre, which resulted in her being convicted of tax evasion. This clearly racist application of the law was formally righted only in 2010, 45 years after Desmond’s death, when the Lieutenant Governor of Nova Scotia gave her a “free pardon” (a formal expunging of the conviction). -Also in 2010, Doors singer Jim Morrison, who died in 1971, was pardoned on a 1969 indecency charge. The original conviction was based on allegations that Morrison had exposed himself during a concert, a claim which is considered doubtful today. -On the other hand, a concurrent petition to the Governor of New Mexico to pardon one of the murders of notorious outlaw Billy the Kid was denied. It was claimed that the pardon had been promised, but never granted, to Billy by Governor Lew Wallace, but Governor Bill Richardson doubted that Wallace had ever really promised him a criminal pardon.
While a dead person may never be able to personally reap the benefits of a criminal pardon (or other posthumous honour or change in status), at least their name will be cleared for posterity, as they surely would have wanted while alive.
Ned Lecic writes for a criminal pardons agency. Of particular interest to him are different legal issues.