Bribing a Survivor to Protect Your Cadaver—Part 1

By William A. Drennan

William A. Drennan is a professor at Southern Illinois University Law School and a former editor for the Books & Media Committee of the Real Property, Trust and Estate Law Section of the ABA.

Your client’s body may be boiled in drano and dumped down the sewer. A disgruntled, mischievous, or environmentally zealous survivor may have a decedent’s body legally boiled in Drano and dumped down a sewer in 28 states. A body may be composted in 10 states. It may be beheaded and a plastic surgeon may practice on the face, while the excess skin is used to “plump wrinkles or aggrandize penises.” Or scientists may simply leave a cadaver outside at a socalled death farm to observe how the body rots when left exposed to the elements and the insects. See Mary Roach, Stiff: The Curious Lives of Human Cadavers 253 (2004) (referring to a “pressure cooker with Drano”); id. at 25 (discussing the terrors of using a body donated to science for plastic surgery practice); id. at 61–70 (regarding the “death farm”).

If a body is fire cremated, pranksters with a morbid sense of humor might snort some of their ancestor’s ashes up their noses. See Ethan Trex, 10 Bizarre Places for Cremation Ashes, CNN. com (Apr. 2, 2010). Also, cremains may be stored in a molded jar featuring a bizarre caricature of the decedent’s face. See David Pescovitz, Strange 3D-Printed Cremation Urns of the Deceased’s Head to Hold Their Ashes, Boing Boing (Apr. 12, 2021), https://tinyurl.com/p9a7nw94. With 3D printers, a scorned spouse or scion might use the decedent’s cremains to create almost any disturbing, inappropriate, or vile object imaginable.

Estate planners understandably focus a great deal of attention on protecting the client’s property, but what about protecting the client’s corpse from defilement? One erudite philosopher observed, “it seems unambiguous that a person’s body is one of the most precious things about which [they] care, certainly more than their . . . property.” Daniel Sperling, Posthumous Interests: Legal and Ethical Perspectives 45 (2010).

Presumably all the legal disposal methods discussed in this article appeal to someone. Nevertheless, individual client sentiments will vary—one person’s perfect “rest in peace” scenario may be another’s debasement. Even when this was primarily a mere binary choice, people had strong preferences for either burial or fire cremation. One client might say, “Please don’t bury me in that cold, cold ground.” Ann M. Murphy, Please Don’t Bury Me in That Cold, Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains, 15 Elder L.J. 381 (2007). But another might say, “We’re sending our families into these intimidating industrial warehouses with behemoth fire machines belching natural gas. It’s almost cruel.” Haley Campbell, In the Future, Your Body Won’t Be Buried . . . You’ll Dissolve, Wired (Aug. 15, 2017), https://tinyurl.com/bddedpwd (quoting Caitlin Doughty, mortician).

In any event, today’s clients might appreciate being informed of the new potential risks to their cadavers and a strategy to provide some assurance that their wishes for “resting in peace” will be carried out.

Scope of This Article

This article discusses how cadaver disposition in the United States has changed over time. Along with the increased popularity of fire cremation, many potentially nightmare-inducing options have developed recently. Techniques outside traditional burial and fire cremation have been devised, publicized, and legalized. Also, this article briefly describes a device estate planners might use to promote pleasant dreams—a financial incentive clause (a/k/a “bribe”) to encourage a designated surviving agent to respectfully dispose of the client’s body in accordance with the client’s expressed wishes. The companion article (Part 2) will address practical tips for planning and drafting these types of incentive clauses, the likely challenge to these incentive clauses on public policy grounds, and the arguments about whether the dead or the living should decide the fate of cadavers.

From Two RespectfulDisposal Procedures to Who Knows What’s Next in Just a Few Decades

Historically, both burial and fire cremation were considered respectful methods of disposal. In ancient cultures, “the bodies of the Kings were buried, while other corpses were consumed by dogs and birds of prey.”

Percival Jackson, The Law of Cadavers and of Burial and Burial Places 7 (1936). Also, fire “cremation was . . . deemed a mark of unusual honor.” Id. at 9. In the United States, traditionally, burial was chosen more often for religious reasons. See Roach, supra, at 259.

In the US, before the Civil War, local churchyard (or community cemetery) burials were common. See Keith Eggener, Building on Burial Ground, Places J. (Dec. 2010), https://tinyurl. com/46f32vuf. “Simplicity to the point of starkness, the plain white box, the laying out of the dead by friends and family who also bore the coffin to the grave—these were the hallmarks of the traditional funeral until the end of the nineteenth century.” Jessica Mitford, The American Way of Death 17 (1963).

With the Civil War, the associated death of many young persons far from home, and the development of embalming techniques, the funeral and disposal process grew more complicated. For a sense of closure, families back home wished to see the bodies of their fallen young relatives who had been vital and healthy just a short time earlier. The need for embalming and long-distance transport necessitated greater reliance on compensated third parties. Over time, professional, licensed funeral directors came to dominate a consistent approach to funerals and burials.

In 1963, Jessica Mitford’s bestselling exposé The American Way of Death condemned the practices that had developed. The “American way” involved funeral home personnel almost immediately taking possession of the body, embalming, publicly displaying the body at the funeral home, conducting a funeral service at the funeral home or a house of worship, and then laying the body to rest in an expensive stainless steel, oak, or mahogany casket, surrounded by a metal or plastic burial vault, in a resource-consuming cemetery. See Mitford, supra, at 16–18; Tanya D. Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327, 1336 (2013). Mitford stressed that this system placed consumers at the mercy of funeral directors at a very emotional time, and a funeral was often the third most expensive purchase “an ordinary American family” might make, behind only home and car purchases. Mitford, supra, at 26–27. Despite the excessive expense, Mitford asserted that custom, peer-pressure, advertising, and professional licensing requirements pushed survivors to follow this commercialized, costly, and environmentally harmful “American way.”

Scholars have credited Mitford with sparking a revolution. See, e.g., Tanya D. Marsh, The Death Care Revolution, 8 Wake Forest J. L. & Pol’y 1, 2 (2018). During the six decades since Mitford’s book, there have been at least two major shifts in death care. First, in the last half century, the popularity of fire cremation has increased tenfold. In the 1970s, the US cremation rate was “just around [5%].” Wayne Read, Chronicling the Substantial Rise in Cremation Rates Across the United States, 27 The Independent, no. 3, Summer 2022, at 18, 19, https://tinyurl.com/4m5hjxtn. By 2015, the cremation rate surpassed the burial rate. Nat’l Funeral Dirs. Ass’n, 2022 NFDA Cremation & Burial Report 7 (July 2022). By 2022, the cremation rate was 59.3 percent, and the burial rate was only 35.7 percent. Id. at 9. The National Association of Funeral Directors predicts that by 2040, 78.7% of the US dead will be cremated and only 16.3% percent will be buried. Id. at 7.

Second, and likely more disturbing to clients, is the rise of new disposition methods in just the last couple of decades. Some are variations of traditional burial or fire cremation, and some are more creative. As these approaches are legalized and broadly publicized, and grow in public acceptance, more opportunities and temptations are created for malevolent or mischievous survivors to reject the decedent’s wishes and settle old grievances or find some humor at the decedent’s expense.

Variations on Fire Cremation and Traditional Burial

With the growing popularity of fire cremation comes more attention on what to do with the cremains. Traditionally, the family member receiving the cremains might purchase an urn and arrange for the urn to be solemnly buried in a cemetery or mausoleum. Recently, survivors have become more creative.

For those who want grandma to go out with a bang, her cremains can be incorporated into a fireworks display or blasted into outer space like Star Trek creator Gene Roddenberry or the TV show’s chief engineering officer, James “Scotty” Doohan. See Kathy Benjamin, Funerals to Die For: The Craziest, Creepiest, and Most Bizarre Funeral Traditions and Practices Ever 189–90 (2013). More disturbing, Rolling Stones guitarist Keith Richards told a reporter that he snorted some of his father’s ashes up his nose. After a “media firestorm,” the musician’s publicist released a statement saying it was “an off-the-cuff remark, a joke.” Trex, supra.

A “green burial” may appeal to a survivor’s legitimate desires to limit environmental effects and be more frugal. See Max Plenke, Traditional Burials Are Ruining the Planet—Here’s What We Should Do Instead, Bus. Insider (Apr. 7, 2016), https://tinyurl.com/3ny25vc6; Jeremiah Chiappelli & Ted Chiappelli, Drinking Grandma: The Problem of Embalming, 71 J. Env’t Health 24, 27 (2008).

Green burials may modify or eliminate one or more elements of the traditional “American Way of Death.” A family may choose to bury very quickly and forgo embalming, or they may use “eco-friendly” embalming fluids in place of formaldehyde. Sharleen Lucas, RN, 8 Green Burial Options: Some Are Greener Than Others, Healthnews (Jan. 2, 2024), https://tinyurl.com/4sm5p8ae. They may replace the traditional stainless steel, oak, or mahogany casket and concrete vault with a simple pine box or cloth burial shroud.

Also, a survivor may choose a temporal variation with either green or traditional burial. Burials for a term of years have been popular in Europe and reuse cemetery space. This reduces the otherwise ever-expanding need for cemetery space, but it does require exhuming the client’s corpse at some point and disposing of (or otherwise storing) the bones, teeth, and whatever else has not disintegrated. Some clients might prefer to rest in peace and may not enjoy the thought of being dug up in a few years.

A Disposal Method for Roadkill and Your Client: The Aquamation Controversy

An especially controversial method is called “water cremation,” “alkaline hydrolysis,” or “aquamation.” The technique is not new—the process was patented in 1888 to dispose of animal carcasses after all valuable parts had been removed. The process has been seen as an economical way to dispose of waste, see Roach, supra, at 251–53, including roadkill. See Bioresponse Solutions, Alkaline Hydrolysis System: BioLiquidator, https://tinyurl. com/4v5us77s. The new development is the legalization, publicity, and perhaps public acceptance of using it on people. See Kent Hansen, Choosing to Be Flushed Away: A National Background on Alkaline Hydrolysis and What Texas Should Know About Regulating “Liquid Cremation,” 15 Est. Plan. & Community Prop. L. J. 145, 150 (2012) (referring to the method as an “environmentally friendly alternative”).

Water cremation involves placing the body in a stainless-steel tube and adding water and powerful chemicals, such as potassium hydroxide or sodium hydroxide (also called “lye”), and heating to 300 degrees Fahrenheit for four to six hours. The approximately 100 gallons of resulting affluent is then dumped into the sewers. Perhaps as an alternative to the sewer, one industry expert observed that people could drink it because “theoretically . . . there’s nothing that is going to hurt you.” Lauren Oster, Could Water Cremation Become the New American Way of Death?, Smithsonian (July 27, 2022), https://tinyurl.com/2yrb48n7 (quoting Oregon funeral director Morris Pearson).

As of August 2024, 28 states reportedly had legalized water cremation. TeamEarth, Tracker: Where Is Aquamation Legal in the US?, Earth Funeral (Oct. 30, 2023), https://tinyurl.com/mr3y7szt (listing Alabama, Arizona, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada, North Carolina, North Dakota, Oklahoma, Oregon, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming); Oster, supra; but see Alex Hager, Bathed to the Bone: This New Cremation Method Uses Water Instead of Flame, KUNC (Mar. 17, 2023), https://tinyurl.com/2rmsw2fb (pointing out that, at the time, water cremation was only being practiced in 15 of 25 states in which it was legal).

When evaluating this method, one Indiana lawmaker invoked the “yuck factor,” saying the decedents are going to “run down the drain into the sewers and whatever.” Devin Powell, Dissolve the Dead? Controversy Swirls Around Liquid Cremation, Sci. Am. (Sept. 7, 2017), https://tinyurl.com/4cuafjka (quoting state Representative Dick Hamm, as reported by the Indianapolis Star). The U.S. Catholic Conference of Bishops Committee on Doctrine has decreed that Catholics may not use water cremation because it does not show sufficient respect for the human body. Comm. on Doctrine, U.S. Conf. of Cath. Bishops, On the Proper Disposition of Bodily Remains 5 (Mar. 20, 2023), https:// tinyurl.com/2keuaedv. In particular, the process results in “100 gallons of brown liquid into which the greater part of the body has been dissolved. This liquid is treated as wastewater and poured down the drain into the sewer system . . . [or] treated as fertilizer.” Id

Your Client’s Body as Fertilizer: The Composting Controversy

Another controversial technique is human composting (a/k/a “natural organic reduction” or “NOR”). First legalized in Washington in 2019, with this technique the decedent is left inside a steel container with a mixture of organic materials such as alfalfa, wood chips, straw, and wildflowers. Techniques may vary, but the temperature inside the box may reach 130 to 160 degrees Fahrenheit, everything is stirred, mixed, or rotated periodically, and after 30 to 45 days, the flesh will have thoroughly decomposed, enriching the soil and creating a “single mass of compost [of approximately] a cubic yard,” id., which can then be dumped on a lawn, in a garden or forest, or any other lawful place. As of August 2024, human composting was legal in 10 states (Arizona, Colorado, Delaware, Maine, Maryland, Minnesota, Nevada, Oregon, Vermont, and Washington). See Tracker: Where Is Human Composting Legal in the US?, Team Earth (Aug. 9, 2022), https://tinyurl.com/3dex74er. A California statute will become effective in 2027, and a New York statute will be effective when a regulatory process is complete. Id

Some states prohibit the composting of multiple decedents together without prior consent, prohibit the sale of the resulting compost heap, or prohibit using the compost heap in growing food for human consumption. Andrew Chamings, California Just Legalized “Human Composting.” Not Everyone Is Happy, SFGate (Sept. 19, 2022), https:// tinyurl.com/476rjuh5. The US Conference of Catholic Bishops Committee on Doctrine has concluded that Catholics are not permitted to compost humans because it fails to show proper respect for the body. In particular, the objection is that composting leaves no discernible trace of the physical body that could “be placed . . . in a sacred place [for] remembrance.” Comm. on Doctrine, supra. Instead, the “body is completely disintegrated.” Id. “Islam prohibits the pulverization of a body, which commonly occurs in human composting . . . [and] [t]here is diversity of opinion in Judaism, with some scholars opposed to the treatment of bones in human composting and the propriety of using human remains as fertilizer.” Dylan Kelleher & Melissa Petruzzello, Human Composting (June 13, 2024), Britannica, https://tinyurl.com/5ujsj6r9.

Additional Potentially Disturbing Disposal Options

Other potential nightmare-inducing options are not easily pigeon-holed as variations of either burial or fire cremation. With sky burial, the decedent may be flavored with milk, flour, tea, and barley and left on a mountain top to be picked apart and devoured by vultures and other animals. Funeral Burial Alternatives, supra. A disgruntled or mischievous relative wishing to inflict a sky burial upon the decedent might need to transport the body overseas because, in the US, it may be illegal as criminal abuse of a corpse. See Lucas, supra. Nevertheless, corpses can be transported outside the US, and at least one commentator speaks glowingly about leaving a decedent in nature, on a picturesque mountain top, for this end. 7 Innovative Burial Alternatives: Beyond the Usual Grave, Better Place Forests, https://tinyurl.com/3m55x4za. Possible locations would include parts of India and regions of the Tibetan Mountains where the terrain is so rocky that burial in the ground is impractical. Benjamin, supra, at 79–80.

Approximately 20,000 of the annual 3.2 million US dead donate their entire bodies to science, presumably motivated by altruism and generosity to promote medical advances. A.W. Ohlheiser, What Happens When You Donate Your Body to Science, MIT Tech. Rev. (Oct. 12, 2022), https://tinyurl.com/2u7rhze5.

Those who choose not to donate their entire bodies may have a different view. From approximately 1785 to 1885, doctors and medical schools were notorious for paying substantial sums (such as the equivalent of a skilled worker’s wages for a week) to grave robbers for a single cadaver that could be dissected. Ray Madoff, Immortality and the Law: The Rising Power of the American Dead 26 (2010). State criminal laws have imposed forced cadaver donation for medical dissection as a form of “super capital punishment” for those guilty of egregious crimes. Id. at 21. Author Mary Roach has written about terrifying things that can happen to a donated cadaver, as briefly described in the first paragraph of this article. Roach expresses particular concern because, at least in some of these situations, there is no indication that the decedent or the decedent’s family consented to these peculiar uses. Roach, supra, at 103 (“At the time a person or his family decides to donate his remains, no one knows what those remains will be used for, or even at which university.”).

Prohibited Methods

There are some methods of disposition that would be prohibited as criminal abuse of a corpse. For example, in one case, the decedent’s brother chopped off her legs and burned her in their home furnace. The court concluded this was criminal abuse of a corpse, even if the sister consented before death. State v. Bradbury, 9 A.2d 657, 659 (Md. 1939); see also Stepenfoot v. Newby, S14C0388, 2013 Ga. S. Ct. Briefs LEXIS 563 (Dec. 9, 2013) (involving a foiled plot to “remove [the decedent’s] bones [and retain those bones] for ‘study’ and ‘art,’” dissect the body, and leave parts in various places, including some parts to be devoured by animals).

Protection Money: A Financial Incentive to Carry Out the Client’s Cadaver Directions

The legal significance of a decedent’s cadaver disposition directions varies from state to state. Commentators typically describe the decedent’s directions in a last will or other document as merely a “hope.” Madoff, supra, at 18; see also 25A C.J.S. Dead Bodies: Weight Given to Decedent’s Preference § 17, at 237 (2012).

More important for this topic, if no survivor seeks to discover, follow, and carry out (and perhaps fight for) the decedent’s wishes, the default decisionmakers under state law, usually the surviving spouse or next of kin, likely may dispose of the cadavers in any lawful way they wish. Madoff, supra, at 18; Sperling, supra, at 145 (“Bodily testaments are not compelling unless voluntarily enforced by survivors”). One commentator states, “You’ve got a lot of children of baby boomers starting to make decisions about funerals who are questioning the death practices of previous generations, and who don’t see the value of an $8,500 . . . funeral that doesn’t hold meaning for them.” Oster, supra.

As indicated, typically under state law, if the decedent fails to effectively designate an agent to dispose of the cadaver, the surviving spouse will have authority. In the absence of a surviving spouse, the decision-maker will be the next of kin. Restatement (Second) of Torts § 868 cmt. b (Am. Law Inst. 1979) (describing the tort of “interference with dead bodies”).

A 2019 survey concluded that 46 states have a statutory procedure for individual to appoint an agent to dispose of their cadavers. Tanya D. Marsh, You Can’t Always Get What You Want: Inconsistent State Statutes Frustrate Decedent Control over Funeral Planning, 55 Real Prop., Trust & Est. L.J. 147, 163 (2020). Perhaps the person designated could be called the “sepulcher agent” under an “ultimate” durable power of attorney (because it is effective only upon the principal’s death).

A client may wish to provide a financial incentive to their sepulcher agent in the form of a contingent bequest or trust, payable if the client’s cadaver disposition directions are followed. Preliminary steps in planning would be choosing the sepulcher agent, choosing the document in which to designate the sepulcher agent, and selecting a dollar amount sufficient to motivate the agent to act in accordance with the decedent’s wishes. The companion article (Part 2) will discuss the practical considerations involved.

Lack of Legal Authority on This Type of Financial Incentive Clause

There appears to be very limited authority on financial incentive clauses for cadaver dispositions. Back in 2013, a distinguished scholar already observed that a financial incentive could encourage a survivor to follow a decedent’s cadaver disposition wishes. See Gerry W. Beyer, Teaching Materials on Estate Planning 539 (4th ed. 2013).

There appears to be no reported case considering the enforceability of such a clause. There was a famous unreported case that may be described as the “Bury Me in My Ferrari” case. Hollywood heiress Sandra West’s last will directed that her brother-in-law would receive $2 million from her $5 million estate if she was buried according to her wishes; otherwise, the brother-in-law would receive only $10,000. Jim Motavalli, You Can Take It with You, If the Grave Is Deep Enough, N.Y. Times, Feb. 24, 2022. West’s burial wishes are famous— burial in one of her Ferraris, wearing a lace nightgown, “with the seat slanted comfortably.”

According to the popular press, the trial judge ruled there was nothing illegal about being buried in a Ferrari. Court Approves Ferrari as Coffin, The Times (San Mateo, Cal.), Apr. 12, 1977, at 16 (discussing the ruling of Los Angeles Superior Court Commissioner Franklin Dana). Newspapers reported that West’s burial wishes were followed, and a contractor poured a layer of cement on top to discourage grave robbers. See, e.g., Timothy J. Fanning, Bury Me in My Ferrari: How a California Socialite Was Laid to Rest, San Antonio Express News (Mar. 22, 2023), https://tinyurl.com/ypnv8e4v. Presumably, the executor of the estate paid the brother-in-law the bonus bequest.

Conclusion to Part 1

The options for cadaver disposal are changing, and clients and their estate planners may want to respond. Until recently, cadaver disposition primarily was a binary world—even if the client made no directions, or the survivors ignored those directions, the decedent likely would be buried or fire-cremated by a licensed funeral director.

In the early 1960s, author Jessica Mitford railed against the expensive and predictable use of formal funerals and burials conducted by professional funeral directors, but now clients may say the pendulum has swung too far in the other direction. Today, a disgruntled, mischievous, or environmentally zealous survivor might have the client composted, or cooked in Drano and dumped down the sewer—bidding farewell to a human being with the same process used for roadkill.

Additionally, more disturbing alternatives may be envisioned. Scientists have worked on a method that one reporter described as answering the question, “What if you want to dispose of [a] body in the manner of an ecologically minded supervillain?” With promession, your enemy’s body would have been frozen (to –321 degrees Fahrenheit) using liquid nitrogen, and then the “block of frozen flesh” would have been violently shaken until it became a powder. See Eric Grundhauser, A Burial Machine That Will Freeze Your Corpse, Vibrate It to Dust, and Turn It into Soil, Atlas Obscura (Feb. 25, 2016), https:// tinyurl.com/mr2uz9fr. As a result, estate planners may want to help a client arrange their affairs to be confident of resting in peace in the manner they choose, perhaps with the help of a financial incentive clause.