Research by Professor Tanya Marsh, Daniel Gibson (JD ’15) about human remains featured in Winston-Salem Journal
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September 8, 2015
The Winston-Salem Journal published the following story on Sept. 8, 2015:
Legal problems don’t go away when loved ones die. They can get more complicated.
When Anna Nicole Smith, the famed Playboy Playmate, died of a drug overdose in 2007 a legal fight arose over where she would be buried because she died in Florida, instead of the Bahamas, where she had told people she wanted to be buried. Florida laws trumped Smith’s wishes, and they also trumped the wishes of her mother, who wanted her daughter buried in Texas. Instead, Florida law gave Smith’s daughter, who was a baby at the time, control over Smith’s remains.
This is just one example of the confusion and legal drama that can arise after someone dies, said Tanya Marsh, a law professor at Wake Forest University. And families, courts and attorneys are often not familiar with the set of laws that deal with human remains. Marsh recently published a book, “The Law of Human Remains,” that she hopes will help provide clarity in this area of law.
She also has published another book with Daniel Gibson, who graduated from Wake Forest University School of Law this past May, called “Cemetery Law: The Law of Burying Grounds in the United States.”
The two books are different but they both explore laws surrounding death. “The Law of Human Remains” is more of a reference book that gives overall principles of the common law dealing with human remains and it then delves into specific laws in all 50 states and Washington, D.C. “Cemetery Law” is more about the history and development of cemetery law in the United States.
Marsh said the biggest conflicts in families often happen when a loved one dies.
“That’s the last chance people have to fight with each other,” she said.
And the conflict can be exacerbated because laws around human remains are usually misunderstood. Most attorneys don’t deal with that area of the law on a regular basis, and many of the laws were written in the 1800s and haven’t evolved much since, she said.
Judges have a difficult time with legal issues on human remains because there is not much case law in the area, she said.
Anna Nicole Smith is a good example of the legal conflicts that can arise after someone dies, Marsh said. Smith had made her wishes known that she wanted to be buried in the Bahamas, next to her son, Daniel, who had recently died.
But the situation changed when Smith died in Florida, Marsh said.
Most states have a priority list for who gets to make decisions about what happens to a family member’s body after they die, and in Florida that control went to Smith’s daughter.
What resulted was a legal fight involving Smith’s daughter, who was represented by a guardian; Smith’s attorney and boyfriend, Howard K. Stern, who wanted Smith buried in the Bahamas; and Smith’s mother, who wanted to take Smith’s remains back to Texas.
And while the fight ensued, Smith’s remains were placed in a refrigerator at a funeral home, Marsh said.
In the end, the courts ruled that Smith’s remains be buried in a grave she purchased in Florida, Marsh said. But it might not have been as clear in other states.
Marsh said she spent more than a year, with the help of students and research assistants, to collect the information in “The Law of Human Remains.”
She said she hopes the book can be a resource for people.
“It’s important that the law is clear,” so that resources in the courts aren’t wasted, Marsh said.
Gibson collected much of the information that ended up in both books.
He said he became fascinated with the topic of cemetery law.
“It was good to go back and forth because a lot of cemetery law is what we’ve been doing for the past 1,000 years,” he said.
Marsh said she spent her early legal career in commercial real-estate.
Cemeteries take up a lot of land in the United States, she said.
North Carolina has 31,666 cemeteries, she said.
“They’re everywhere,” she said.