Ronald A. Lindsay, a lawyer and philosopher, is Legal Director for the Center for Inquiry.
If you’re reading this article, there’s a good chance you are not dead. Secular humanists accept the inevitability of death and also accept the fact that the world will continue without their presence. Some are indifferent to what happens to their remains and property after they die; for others, it is a matter of some significance. Those in the latter group are sometimes concerned that the wealth in their estate may not be distributed according to their wishes, especially if they are leaving bequests for humanist/atheist/skeptic groups that may not be considered appropriate recipients by the decedent’s religious heirs. Similarly, the idea of having a religious memorial service is deeply repugnant to many freethinkers. No, it’s not that they believe their spirit will be floating around somewhere watching the travesty; it is that, at a very fundamental level, it makes a mockery of the life of a religious skeptic to have the service memorializing her or his contributions transformed into a celebration of everything the person opposed. Whose life was it, anyway?
Unfortunately, it cannot be said that these concerns are unfounded. Many of us are familiar with at least one instance in which a freethinker’s body was appropriated by religious relatives and used as a prop in a religious indoctrination service. (One occasion I recall is the disposal of the remains of Philip Mass, an open atheist and the first chair of the Robert Green Ingersoll Memorial Committee, whose remains were subjected to an Orthodox Jewish service and interment.) Nonetheless, there are some simple, prudent steps that one can take to diminish the risk of one’s property or remains being disposed of contrary to one’s wishes. This article will outline those steps.
Before proceeding further, let me make an important disclaimer: I am a lawyer for the Center for Inquiry, but this article is not intended as, nor should it be interpreted as, legal advice. To provide legal advice would require an understanding of your personal situation, including but not limited to the governing law in your jurisdiction. (As we will see, the relevant laws vary among our fifty states and the District of Columbia.) Furthermore, this article is not intended as, nor should it be interpreted as, an attempt to solicit bequests for CFI or any of its affiliates. This article offers some practical tips purely as a service to our readers.
Your Property
Let’s deal with items other than your body first, because disposing of your property in accordance with your wishes should be relatively uncomplicated. Assuming you dispose of your property through a legally valid document, such as a will or testamentary trust, your bequest should be honored. This was not always the case, by the way. Stephen Girard (1750–1831), probably the wealthiest freethinker among early Americans, left much of his money to charity, including a substantial sum for the establishment of a secular school to which no “ecclesiastic . . . of any sect whatsoever” could be admitted, even as a visitor, let alone as a teacher. After a bitter will contest in which the heirs argued that the will was contrary to public policy, the Supreme Court ultimately upheld the will, but only by interpreting it contrarily to Girard’s wishes. The Court ruled that teaching morality required the teaching of Christianity(!), but that this could be accomplished through the use of “lay” religious instructors. (See Vidal v. Girard’s Executors, 2 How. 127 [1844].)
We have progressed since then. Bequests to freethought organizations are routinely upheld, provided they become known. But there’s the rub. Almost all jurisdictions have statutory provisions under which all parties designated to receive a bequest are to be notified of the bequest, even in situations in which a testator’s intent has changed. For example, if a will once indicated that $50,000 was to be given to Amalgamated Atheists but a later codicil has eliminated that bequest, when the will is probated, Amalgamated Atheists should still receive notice that at one time the organization was designated as a beneficiary under the will. This would give it the right to contest the will, if there was some suspicion that the codicil was executed improperly—for example, under pressure from religious relatives. So what’s the problem? Well, if fundamentalist Uncle Fred has control of your will, it is possible that your bequest will never become known. Here is what you should do: notify in writing the organization to which you intend to bequeath money/property of your intent. Better yet, send the organization either your entire will or relevant portions of it. In addition, from time to time, reaffirm your testamentary intent by writing to the organization. This accomplishes two objectives. First, the organization will have knowledge of your bequest. Second, if someone has coerced you to change your bequest, or has simply engaged in outright fraud by deleting the bequest from the will, your record of correspondence with the organization will help to establish what your true intent was.
Another action to consider is the transfer of some financial interest to the organization while you are still alive, with the organization receiving the value of the transferred property upon your death. For example, if you have real estate that you do not want to leave to your heirs, or if you have no close heirs, you can transfer the property to the organization now, retaining a life estate in the property while leaving the remainder interest (that is, title to the property after your death) to the organization. This way you can enjoy the benefits of the property while you are still alive, while being assured that the organization you support will receive the financial assistance you intend to provide. Similar arrangements can be made for the transfer of cash, securities, or other personal property, for example, by the creation of a charitable-gift annuity pursuant to which you donate personal property and the organization then provides you with fixed, periodic payments for the rest of your life. Depending on how the arrangement is structured, you may also qualify for a charitable tax-deduction based on the value of the gift.
Most nonprofit organizations have employees who have the responsibility of advising potential donors on how to structure a gift so that both they and the organization can receive the maximum benefit from the donation. If you are contemplating a substantial gift to such an organization, you should contact the organization to discuss options.
If you follow these practical suggestions, it is very likely that your property will be disposed of and used in accordance with your intentions.
Your Body
Let’s start off with some good news. At common law, instructions by the decedent regarding the disposition of her/his body had no legally binding effect because a corpse was not considered property. As a result, control over your body rested with your closest relatives and they could completely disregard your own wishes. That common-law rule has been abolished, at least in the United States.
In the United States, as a general matter, “the wishes of a decedent in respect of the disposition of his remains are paramount to all other considerations” (In Re Eichner’s Estate, 18 N.Y.S.2d 573 [1940]). However, the form in which these wishes are expressed is important. As you might expect, oral statements to some friends that you do not want a religious memorial service may not suffice to prevent your religious relatives from using your corpse as the centerpiece for a hellfire-and-brimstone hoedown. In Stewart v. Schwartz Bros.–Jefer Memorial Chapel, Inc., 606 N.Y.S.2d 965, 966 (1993), the gay partner of the decedent sought a temporary restraining order to prevent the mother and siblings of his partner from burying the body following an “elaborate Orthodox Jewish funeral.” Stewart testified that his partner was an agnostic, wished to be cremated, and had made it “clear to him that he did not want a religious ceremony, especially one with a rabbi officiating.” Pun intended, Stewart’s claim likely would have been dead in the water had the decedent’s brother not been honest enough to admit that, in a telephone conversation, the decedent had stated that he wanted to be cremated. Given the absence of any written expression of the decedent’s wishes, however, the court probably would have ruled in favor of the blood relatives, but, following a hearing, the parties came to a Solomonic settlement: the decedent’s body was cremated and the ashes split evenly between the decedent’s partner and relatives.
This emotionally trying litigation likely could have been avoided had the decedent made his intentions known in writing. But what type of writing? Here things become a bit complicated, and we are again reminded that the United States is a federal republic, with each state and the District of Columbia having the right to legislate on this issue. Fortunately, there has been a trend in the last few years for many states to adopt legislation that is very similar, if not identical, on the issue of a decedent’s instructions concerning the disposition of remains. If I had written this article just ten years ago, there would have been a wide variety of different state laws on this topic, with probably less than half of the states having any express statutory provision allowing an individual to give legally enforceable written instructions regarding the disposition of his/her remains outside of a will. (And instructions in a will present some problems, as discussed below.) Now, about three dozen states have statutory positions that specify how a person can designate an agent and leave instructions regarding the handling of his/her body after death.
New York Public Health Code § 4201 is a good illustration both of this trend and of the typical provisions of these “disposition of remains” statutes. It was just last year that New York State adopted a statute that describes how a person can execute a legally binding set of instructions to appoint someone who will have control over the body and be required to follow the person’s wishes regarding its disposition. (Sample pages of the required form are reproduced above.) The instructions must be witnessed by two persons and the agent must also sign the document accepting the appointment. Many other states have similar provisions, but you need to check the law of your jurisdiction because there are important variations. For example, in Virginia, the document appointing an agent must be notarized but does not have to be witnessed (Va. Code § 54.1-2825). Many states’ legal codes can be found on the Internet. Also, there are Web services, such as www.findlaw.com, that collect the codes of the different states. (Caution: these Web services are sometimes incomplete and slightly out of date.) To be safe, you may want to have the document containing your instructions both witnessed by two individuals and notarized.
Also, be aware that some of these statutes provide that instructions do not have to be followed if they require the expenditure of money that exceeds the decedent’s available assets. So if you insist on a marching band and a mausoleum the size of a house, make sure you have the means to afford it. These disposition-of-remains statutes have greatly simplified matters. Prior to the enactment of these statutes, persons could leave written instructions, but there was no guarantee that they would have binding effect. Instructions could be left in a will, but there are problems with testamentary instructions. Normally, wills have to be probated, that is, proven in court to be valid before their provisions can become effective. Probate, which can be a time-consuming process, rarely takes place prior to a memorial service. Accordingly, by the time your will is probated and your wishes confirmed, your memorial service will have taken place and your body buried, cremated, or otherwise disposed of. (Yes, bodies can be exhumed for cremation and ashes can be buried, but, really, what’s the point at that stage?) For this reason, courts in at least a few states, including Alabama, Alaska, and New Jersey, have issued decisions indicating that the instructions in a will regarding disposition of the decedent’s body can be given effect prior to the will being probated, but this rule is far from universal.
There are two other mechanisms for trying to ensure that your body is treated as you wish. One is to enter into a pre-need contract with a funeral home, in which you pay and arrange for the services you want in advance of your death. However, although these contracts are reasonably reliable for making sure you are not buried when you want to be cremated or vice versa, they are less helpful in ruling out religious services. These contracts are typically form contracts, meaning that if you want a special “no religion” clause in there, you will have to ask for it. Then you have to count on the funeral director to enforce that provision against your relatives’ desires. Finally, not everyone wants to commit to a pre-need contract. Then there is the device of a conditional will provision in which you bequeath X dollars to your closest surviving nephew Jerry, provided that Jerry gives you a secular memorial service. How effective this method is depends on a lot of factors, including the depth of your relatives’ religious commitment. Also, it may just spark litigation over the validity of the will, which, presumably, is something you want to avoid.
To summarize, here is what you should do: if you live in a state that allows you to prepare a legally enforceable set of written instructions, then execute such a document. It would not be a bad idea to let others know that you have prepared such a document and that you have designated Mary or John as the agent responsible to carry out your instructions. This may forestall disputes and also will help ensure that Mary or John do, in fact, follow your instructions, as others will be aware of your wishes. You can and should also refer to these instructions in your will. If you live in a state that does not have a disposition-of-remains statute (and, barring recent legislative changes, that would include Rhode Island, Pennsylvania, Delaware, Ohio, Kentucky, Alabama, Mississippi, South Carolina, Montana, North Dakota, Alaska, and Hawaii), place your instructions in a will and a witnessed affidavit and share these instructions with several of your atheist/skeptic/humanist friends. Although this may not absolutely ensure that you will have a religion-free memorial service, it will greatly increase the odds that the service commemorating your existence will be an authentic reflection of your life rather than a perverse, distorted appropriation of it by Religion, Inc.
We skeptics recognize there are no guarantees. There is no deity that you can manipulate through prayer or some magic incantation you can recite that will always deliver to you what you want. In fact, I suggest that the ability to live with some degree of uncertainty is a defining characteristic of those who reject the supernatural. However, another defining characteristic is the knowledge that one can and should take appropriate measures to bring about desired results. We are not deluded by false certainties, but neither are we fatalists. So if you are concerned about what happens to your property or body after you die, take some practical steps now. Then relax and enjoy the rest of your life.
Part INew York’s form for appointing an agent to dispose of one’s remains begins with these pages. The complete form is reproduced in the online version of this article.
CFI SUMMIT
OCTOBER 24-27 2013
TACOMA, WASHINGTON
Joint Conference of the Council for Secular Humanism, Center for Inquiry, and Committee for Skeptical Inquiry
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