# What is the legal status of a corpse? **URL:** \ **Category:** Factual Questions\ **Created:** [October 18, 2009, 2:31pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215 "2009-10-18T14:31:05Z")\ **Posts on this page:** 14\ **Page:** 1
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [October 18, 2009, 2:31pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/1 "2009-10-18T14:31:05Z")
There seem to be a number of laws out there ‘protecting’ corpses from certain forms of abuse; necrophilia, etc. They seem to be largely about protecting the dignity of… well, something or someone, perhaps surviving family members. This thread was inspired by a number of recent ones about organ donation, or the lack thereof. Is a corpse property owned by the next of kin? Is it public property? Does it have any ‘rights’? If government decided that corpses are a valuable resouce for the living, and passed laws to salvage useful organs or tissues from every corpse, regardless of the wishes of survivng family members, what would be the legal obstacles to such laws? ---
**Author:** ![Bijou\_Drains](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bijou_drains/32/2814_2.png) [@Bijou\_Drains](https://boards.straightdope.com/u/Bijou_Drains)\ **Post date:** [October 18, 2009, 2:43pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/2 "2009-10-18T14:43:58Z")
Saw a documentary that touches on this. If someone dies in LA and nobody claims the body they cremate the body and keep the ashes for about 1 year so they can be claimed. When the year is up with no claim they bury the ashes in a common grave. The also hold on to their stuff for about 6 months and then auction it off. In some cases they are able to contact relatives and they don’t want to be involved. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [October 18, 2009, 2:51pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/3 "2009-10-18T14:51:38Z")
I wonder if they could take the heart, lungs or whatever instead of just cremating the whole thing? I mean, if they can burn it or bury it without permission, why not do whatever they want? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 18, 2009, 2:52pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/4 "2009-10-18T14:52:27Z")
To the best of my knowledge, while it’s pretty much a local-jurisdiction question (states , _Lander_, Scots law, etc. rather than national or international standard laws), there’s a pretty common standard that the corpse is the property of the deceased’s estate, to be disposed of in accordance with his instructions, and, like any other part of the estate, subject to challenge by an heir or consensus by all heirs that the terms of the will or other insturctions are improper and should be superseded. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [October 18, 2009, 7:06pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/5 "2009-10-18T19:06:54Z")
Human Remains are not property at common law, and are incapable of being stolen. Here is more than you would want to know about the legal status of human remains. > **[Law Relating to Theft](https://books.google.com.pk/books?id=FSJ7QB-TQbMC&pg=PA78&lpg=PA78&dq=Human%2Bremains%2Bincapable%2Bof%2Bbeing%2Bstolen&source=bl&ots=oQrhNabzLI&sig=cGKmkv_PINodMduHE7C1UvOxZ6o&hl=en&ei=smbbSsOvHaiK6APLqLCTBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CA4Q6AEwAA#v=onepage&q=&f=false)** > > This series of papers was presented at a conference held in 1992 to mark the twenty-fifth anniversary of the creation of a first national Ombudsman under the Parliamentary Commissioner Act 1967.The distinguished contributors present an intriguing... ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [October 18, 2009, 7:22pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/6 "2009-10-18T19:22:50Z")
> [@Boyo\_Jim](#): > > I wonder if they could take the heart, lungs or whatever instead of just cremating the whole thing? I mean, if they can burn it or bury it without permission, why not do whatever they want? because you have to have the permission of next of kin, so between the notification process and getting permisison the body parts would have expired to the unusable point. That is why having a signed donor card is very important if you are serious about wanting to be parted out, that way they do not need to track anybody down.A hospital is not going to put a corpse on life support until they can track down next of kin, which is what it would take to keep the organs usable. If they have the donor card, they will harvest you immediately, then track down next of kin. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [October 18, 2009, 9:40pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/7 "2009-10-18T21:40:05Z")
> [@AK84](#): > > Human Remains are not property at common law, and are incapable of being stolen. Here is more than you would want to know about the legal status of human remains. > > [Law Relating to Theft - Charlotte Walsh - Google Books](http://books.google.com.pk/books?id=FSJ7QB-TQbMC&pg=PA78&lpg=PA78&dq=Human+remains+incapable+of+being+stolen&source=bl&ots=oQrhNabzLI&sig=cGKmkv_PINodMduHE7C1UvOxZ6o&hl=en&ei=smbbSsOvHaiK6APLqLCTBg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CA4Q6AEwAA#v=onepage&q=&f=false) Thanks for that link. Too bad that pages 74-75 are missing, as it seems they may contain more of the discussion about corpses and body parts. I’m not sure how much if any of this is applicable to US law, and it is unclear just which nation’s laws are being considered, though I did see one mention of Australia and several references to Acts of Parliament. And the references to ownership are mostly in the negative. A corpse is not property, unless certain things are done to it which make it property. But some aterial taken from live persons, such as blood, are considered property. All very foggy. But there is case law of organs being removed and the family having no right to recover them, for instance to organs removed during an autopsy. There are also references to rights of possession that suggest that it might be possible for some person or institution to use the body as they see fit without regard to family wishes. All very interesting. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 18, 2009, 9:57pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/8 "2009-10-18T21:57:09Z")
Most courts recognize a quasi-property right in dead bodies: > [@](#): > > At common law, there is no property right in a dead body (22A > Am. Jur. 2d Dead Bodies 2 (1988)), and the body forms no part of > the decedent’s estate (In re Estate of Fischer, 1 Ill. App. 2d 528, > 535 (1954)). The nearest relatives of the deceased have a quasi- > property right in the body; this right arises out of their duty to > bury the dead. 22A Am. Jur. 2d Dead Bodies 3 (1988). In > Illinois, this right has been construed to give the next of kin the > right to determine the time, manner, and place of burial. Fischer, > 1 Ill. App. 2d at 532; see also Leno v. St. Joseph Hospital, 55 > Ill. 2d 114, 117 (1973) (“The principle is firmly established that > while in the ordinary sense, there is no property right in a dead > body, a right of possession of a decedent’s remains devolves upon > the next of kin in order to make appropriate disposition thereof, > whether by burial or otherwise”). However, once the body is > buried, it becomes “part and parcel of the ground to which it is > committed.” 25A C.J.S. Dead Bodies 2 (1966). Upon burial, the > body is generally viewed as being in the custody of the law (22A > Am. Jur. 2d Dead Bodies 70 (1988)), but the next of kin do have a > protectable interest in the body that would allow them to challenge > a disinterment (Hough v. Weber, 202 Ill. App. 3d 674, 685 (1990)). [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=2960181&invol=1](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=2960181&invol=1) And see, [http://www.pdfdownload.org/pdf2html/view\_online.php?url=http%3A%2F%2Fwww.7jad.com%2FWalker%2520Cty%2520Criminal%2Forder3%252081204.pdf](http://www.pdfdownload.org/pdf2html/view_online.php?url=http%3A%2F%2Fwww.7jad.com%2FWalker%2520Cty%2520Criminal%2Forder3%252081204.pdf) (quasi-property interest in dead body “any property” under Georgia theft statute). [http://www.jamesmartinpa.com/bodieslaw.html](http://www.jamesmartinpa.com/bodieslaw.html) (discussing Florida law). ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 18, 2009, 10:04pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/9 "2009-10-18T22:04:26Z")
> [@Boyo\_Jim](#): > > Thanks for that link. Too bad that pages 74-75 are missing, as it seems they may contain more of the discussion about corpses and body parts. You might find this case interesting: [Archives & Special Collections • Library • Penn Carey Law](http://www.law.upenn.edu/bll/archives/ulc/uaga/BrothertonvCleveland.htm) and this one: [Error 404 | Emory University | Atlanta GA](http://library.law.emory.edu/6circuit/july95/95a0205p.06.html) (“The next of kin have the right to dispose of the body in limited circumstances, possess the body for burial, and prevent its mutilation. Applying Brotherton, we therefore hold that Michigan provides the next of kin with a constitutionally protected property interest in the dead body of a relative.”) ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [October 18, 2009, 10:29pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/10 "2009-10-18T22:29:33Z")
> [@Gfactor](#): > > You might find this case interesting: [Archives & Special Collections • Library • Penn Carey Law](http://www.law.upenn.edu/bll/archives/ulc/uaga/BrothertonvCleveland.htm) > > and this one: [Error 404 | Emory University | Atlanta GA](http://library.law.emory.edu/6circuit/july95/95a0205p.06.html) (“The next of kin have the right to dispose of the body in limited circumstances, possess the body for burial, and prevent its mutilation. Applying Brotherton, we therefore hold that Michigan provides the next of kin with a constitutionally protected property interest in the dead body of a relative.”) Thanks, these are much clearer. It suggest to me that the Federal government couldn’t realistically step in with some national laws, but that the states probably could create laws allowing the harvesting of body parts in any cases where it was feasible. I’m sure that’s way too simplistic, but these cases seem to have been decided by fairly straightforward interpretations of existing law rather than some unenumerated rights that families have that are in conflict with state laws. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [October 18, 2009, 10:44pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/11 "2009-10-18T22:44:32Z")
> [@Boyo\_Jim](#): > > Thanks, these are much clearer. It suggest to me that the Federal government couldn’t realistically step in with some national laws, but that the states probably could create laws allowing the harvesting of body parts in any cases where it was feasible. I’m sure that’s way too simplistic, but these cases seem to have been decided by fairly straightforward interpretations of existing law rather than some unenumerated rights that families have that are in conflict with state laws. You got it. In each case, the federal court examined state law to determine if the next of kin had a property right in the deceased’s body parts. States are free to change their laws if they see fit. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [October 19, 2009, 3:20am UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/12 "2009-10-19T03:20:13Z")
Well, they can’t vote. (Except in Chicago. 🙂 Or maybe states that have early/absentee voting when they mailed in their ballot and then died after that. ---
**Author:** ![qazwart](https://avatars.discourse-cdn.com/v4/letter/q/5fc32e/32.png) [@qazwart](https://boards.straightdope.com/u/qazwart)\ **Post date:** [October 19, 2009, 3:29am UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/13 "2009-10-19T03:29:28Z")
In many jurisdiction, corpses still have a right to vote. It was said that when Mayor Richard M. Daley of Chicago died, he would no longer serve as mayor, but he’d still be a loyal Democrat. ---
**Author:** ![aruvqan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aruvqan/32/2891_2.png) [@aruvqan](https://boards.straightdope.com/u/aruvqan)\ **Post date:** [October 20, 2009, 12:25pm UTC](https://boards.straightdope.com/t/what-is-the-legal-status-of-a-corpse/514215/14 "2009-10-20T12:25:24Z")
> [@t-bonham@scc.net](#): > > Well, they can’t vote. (Except in Chicago. 🙂 > > Or maybe states that have early/absentee voting when they mailed in their ballot and then died after that. We have one of those cute little political lawn signs with a drawing of Chief Tammany and a text of ‘Vote Early, Vote Often!’ that we made up a few years ago.