When a person dies, do they continue to have any legal subjectivity as a natural person? More specifically, what can a person do while still alive to ensure that any wishes they have will be respected? And how much weight should such wishes carry? This is not an issue that is often considered, but at times it may become a pressing question. We will examine a number of such situations in this article from a legal and moral perspective.

Writing a will

A last will and testament is an archetypal document expressing the wishes of a living person for what is to happen after they die, and having legal power after their death. Through a will, one generally makes binding decisions on the following issues:

• Who will inherit a person’s assets

• Who will be the guardian of their minor children

• In some jurisdictions, what their funeral will be like. But usually, a will is not an appropriate place for this (see below)

In general, the provisions set out by a last will and testament must be respected; however, different legal jurisdictions place different restrictions on this. Traditionally, common law jurisdictions largely leave the matter of inheritance up to the testator, though they may allow a will to be contested. On the other hand, many civil law (typical continental European law) jurisdictions consider certain people to be entitled to a portion of their parent’s or spouse’s estate.

Disposition of remains

"Disposition of remains" is a broad term that refers to what will be done with the physical remains of a dead person. The options associated with this are multiple, covering such issues as:

• Whether to bury a body, to cremate it or to donate it to science

• Whether to bury the remains or put them in a crypt; whether to keep ashes at home or disperse them outside

• What will happen at the funeral and who will be invited, or whether the remains will be buried without a funeral

In most cases, these matters are authorized by a decedent’s next-of-kin or executor, who may act upon the wishes of the deceased. But what if a disagreement arises on these issues between the wishes of the family and those of the deceased (before or after the person died)? Here is a real-life example: the grandmother of a Canadian immigrant family was returning to their home country. Recently, she had grown close with some long-lost relatives, so close, in fact, that she wished to be buried in the town in which they lived after she died. Her daughter, who did not trust these relatives, was opposed to this plan, which caused the old woman to feel very bitter. She confided this to her grandson, who sided with her. He thought that his grandmother should have the right to make her own burial arrangements and advised her not to worry about his mother’s opposition, but to consult with a lawyer about arranging everything for herself when she came back. The grandmother returned to the old country, and in time let the grandson know that she had acquired a grave plot and pre-arranged her funeral in the town of her choice.

The extent to which a person can control the final disposition of their remains against the wishes of their next-of-kin (or executor) varies widely according to where they die. Jurisdictions where disposition can be controlled by the decedent include:

• Quebec. According to Section 42 of the Civil Code, "A person of full age may determine the nature of his funeral and the disposal of his body; a minor may also do so with the written consent of the person having parental authority or his tutor."

• Texas: a person may contract with an agent to control the disposition of their remains. The agent will be bound by the person’s wishes and the family will not be able to veto the arrangements.

• France: the law on this matter is particularly strict. Not only may a person pre-arrange their own funeral, but Article 433-21-1 of the Penal Code punishes anyone who gives a funeral a character contrary to the known wishes of the deceased with a six-month jail sentence and a 7500 Euro fine.

Jurisdictions which do not give the decedent the right to manage the disposition of their own remains include:

Alabama: only the rights of the next-of-kin, in order of precedence, are recognized in law.

Michigan: a person may leave instructions for their burial, but their next-of-kin will have the final say.

It should be noted that even in jurisdictions where a person may make their own disposition of remains decisions, there may be certain specific matters which in practice will be left to the family to decide, particularly when the wishes or participation of a third party are involved. In a hospital, for example, it may be standard practice to remove the organs of an organ donor only if their family is not opposed. Another case concerns people who are entitled funeral honours (military, police, fire department etc). In 2006, for example, when renowned Australian animal expert Steve Irwin was killed by a stingray, the Australian Government offered his widow a state funeral for him but she preferred to have a private funeral. The question is, would an outfit such as a government, police force, military etc ever provide funeral honours against the family’s wishes, if requested to by the entitled decedent? Perhaps in some cases: on the website of a German military association, we read that a veteran may receive a military funeral either if the next-of-kin wishes it or if the veteran himself requested it in a will. But in the manuals of many other outfits (armed services, police forces etc), I have found only references to the wishes of the family being respected and it is not clear if those of the decedent would be taken into consideration.

Posthumous criminal pardons and rehabilitations

Another issue concerning dead people is the granting of a criminal pardon or rehabilitation for someone who has died. This includes cases where a person’s crime is formally forgiven or when their innocence of the deed they were accused of is recognized. Some well-known examples of this include:

• Attempts to right wrongs done by totalitarian governments. For example, when Communism came to Czechoslovakia after World War II, many patriotic members of the military who had been resistance fighters in the War were convicted on trumped-up treason charges, stripped of their rank and sentenced to hard labour, because the paranoid pro-Soviet government questioned their loyalty. After the fall of Communism, these veterans were rehabilitated and restored in their rank or even promoted; unfortunately, in the case of some (e.g. highly decorated Air Force General Janousek), the rehabilitation came after they had died.

• In 1946, Viola Desmond, an African-Canadian beautician, refused to sit in the blacks-only section of a New Glasgow movie theatre. For this, she was arrested and convicted of tax evasion, a charge Desmond fought unsuccessfully. Only in 2010, 45 years after Desmond’s death, did the Lieutenant Governor of Nova Scotia issue a "free pardon" – meaning that her conviction was invalidated.

• Also in 2010, an application to pardon one of the murders committed by Western outlaw Billy the Kid was filed with the Governor of New Mexico, on the grounds that Governor Lew Wallace had promised Billy a pardon for it in exchange for testifying in another case and had never kept his promise. This arguably frivolous motion was denied on the grounds that Wallace’s intention to grant a criminal pardon had not been reliably ascertained.

So, what rights should a decedent have?

Once a person is dead, they are no longer able to control the outcome of anything. But as we have seen, depending on the jurisdiction, a person may arrange some matters concerning them beforehand, giving them legal effect. This may not always be pleasing to survivors, who may consider that nothing can be relevant to someone no longer alive, as no mental faculty remains, only an inanimate body that is likened to an object without legal subjectivity. But even if a person has died, their legacy lives on, and often influences the course of society into the future. Furthermore, there are finalities that need to be resolved when a person dies, and as the death originates from a living person, the person may have specific wishes regarding them, so why should they not be honoured, provided they are legal and morally sound? The case of wills illustrates this well and few people would deny the right of someone to dispose of their property as they see fit, whether alive or dead. In the case of a will, they are expressing their wishes while alive and having legal capacity, so does it matter if these are honoured shortly after they are dead?

Should a person be able to make binding choices about the disposition of their remains? The issue may be viewed from two different perspectives. One is that a funeral honours the dead person; therefore they have a right to choose how they want to be remembered. The other is that it serves to comfort the living; therefore the next-of-kin should have the right to arrange the funeral. I can sympathize with both points of view, but feel that ultimately, a person should have the right to make final arrangements for the disposition of their remains according to what is morally, religiously and aesthetically acceptable to them, if they so choose. In other cases, the next-of-kin or executor may make the arrangements. I would support a blanket law giving a person the power to arrange all matters relating to the disposition of their remains beforehand, and if the choice was not illegal or immoral, their family could not veto them. This would include matters like organ donation and the rendering of military funeral honours.

What about posthumous criminal pardons? On one hand, the deceased party will not know that they were pardoned, and so will not be able to reap the benefits of it personally. At the same time, it can be said that, as in the case of testaments and funeral wishes, it would reflect what the person wanted while alive, and so would retroactively benefit them. Above all, though, in cases where there was a miscarriage of justice, a posthumous criminal pardon or rehabilitation has at least a moral value for society as a whole and clears a person’s name for posterity.