In earlier posts, I’ve assumed that in determining liability for the death of a victim it is the victim’s law that should be applied, subject to the usual principles for choice of law. We can rationalize this choice as essential to preserving reciprocity even in the case of mortal injuries, but it might be questioned whether the choice is truly justified. In whatever form a deceased spirit exists, if it exists in any form at all, it is evidently not in the form of a corporeal natural person. And unlike a disabled person, who might perhaps overcome his disability someday, the deceased once dead and decayed can never again assume the same identity and capabilities of her formerly living being. So applying the law of a dead person violates the founding pillar of personhood. It seems as if a choice must be made: either the founding pillar of personhood must be temporarily waived when a case touches on a dead person, the law of the dead must forever be enforced as if frozen in time, or all the law of the deceased must be immediately disregarded. It is not immediately obvious which choice is wisest. As shall be shown, it is not necessary to make any such choice.
There are two principal classes of legal action involving dead law makers. The first class includes all claims for or against the dead person, arising out of circumstances preceding their death. The most dramatic example is a claim for restitution or vengeance in the case of murder or negligent homicide. Although these claims are not perfected until the victim dies, the claims nonetheless belong in this class because killing can only be inflicted on the living. Yet this class also includes a multitude of less dramatic claims that were made by or against the dead person, or could have been made, prior to their death. Just about any claim will do. It is a not uncommon situation, traditionally handled in the West by maintaining the action by or against the estate of the deceased under State-made law. Under voluntary law, it may be necessary to reconcile conflicting laws, and to that end, to consider whether or not the law of the deceased should be respected just as in life.
Causes of action in this class arise always during the life of the victim or of the wrongdoer. Even murder does so arise during life, because it is impossible to kill one who is already dead. As in every other case arising out of the past, the law is retrospective; it looks back in time. In these cases, the law looks back to a time when all parties were alive. Therefore, for purposes of determining the law to be applied, the death of the victim or of the one accused of wrong is of no consequence. The law of the deceased is applied as if they were alive. To hold otherwise would be to make an exception to the general operation of the law, in view of arbitrary circumstances arising after the fact. If justice is to be fair and not arbitrary, there is no choice to be made when judging events that occur before death. The adoption of law made by the one who has died must be regarded as if she had not died, for rulings in this class of actions.
The second principal class of actions involving deceased law makers includes all claims that cannot begin to arise until after the law maker is dead. This class includes claims of inheritance, and the disposition of wills, trusts and estates. Although actions prior to death may be considered in judging these cases, for example, the execution of a will, such actions are not the cause of the action at hand. The cause is simply the event of death itself. Thus, justice does not require that the law of the deceased be applied as if he were alive.
Neither does justice require that the law of the deceased be ignored. For example, the extent to which to consider the law of the deceased can be determined based only on the laws of the living, so there is no contradiction of foundational principals. If a living party has adopted a law that gives meaning to instruments such as wills, or provides for rights of inheritance under the law of the one who has deceased, and the deceased had a compatible law, then there is no issue to be decided. The law of the deceased will prevail. It may be that most people will adopt laws that respect the adopted law and wishes of the dead with respect to wills, trusts and the disposition of estates. If not holding to such a law, then their own wishes are much less likely to be considered upon their death. Also, without a continuance of an elderly or infirm person’s estate after death, others may be unwilling render services or lend to such persons. A continuance of the deceased’s property interests until their debts are settled depends on a mutual recognition that the property interests can survive death for some period of time.
Others may have no real concern about the disposition of their property after death, and choose laws that seem more advantageous during life. To these people, it might seem better to make claims on property of the deceased without being constrained by the laws or wishes of the deceased. For example, such a person might hold to a law stating that all property rights cease immediately upon death, such that death itself acts as abandonment of any property held by the deceased at the time of death. This person would then be able to make a claim upon any property so “abandoned.” Such a claim would have to compete with claims upon the deceased’s property by any others with contrary laws. If there are no opposing claims to the same property, the claim can be considered as if made upon abandoned property, considered elsewhere.
For example, consider a case in which a person dies with a will, or without a will but with a surviving spouse. A stranger brings a claim for property formerly owned by the deceased, and the spouse opposes, claiming the property for himself either on the basis of the will or the deceased’s inheritance laws. If the stranger has no nexus to the property she claims, she will lose under TROTWET to the surviving spouse, who has a nexus to the property by way of the will, by way of his relationship to the deceased, by way of actual use or labor associated with the property, or by any combination of the foregoing.
On the other hand, if the stranger bases her claim on some nexus to the property that runs deeper than the spouse’s, the stranger may prevail. For example, suppose the stranger is not truly unfamiliar, and can prove she had an ongoing intimate relationship with the deceased, the property she is claiming was purchased by the deceased for her to reside in, and she did in fact reside there. In such case, her claim to the property should succeed under a weaker tool analysis for property claims, because a neutral jurist should find that the claim of property she is asserting is based a law that requires a more stringent antecedent for the property claim than the law of the surviving spouse. Win or lose, the stranger’s claim can be judged fairly without any need to assert the law or claims of a dead person against her.
On the other hand, if both the stranger and the spouse by their prior adoption of law recognize the will of the deceased, then the will of the deceased should be faithfully executed. If the deceased’s will is valid only under the law of the spouse, but not under the law of the stranger, then the will is properly a factor in testing the prevailing law to be applied to the competing property claims, but does not control. The outcome will depend on whether the will plus the spouse’s antecedent nexus to the property is more, or less, stringent than the antecedent nexus of the stranger, as with any other dueling property claim.
Any law that grants rights to property on the basis of some relationship to a particular deceased person must, by logical necessity, recognize the preceding ownership claim of the deceased. So even if the law of the deceased no longer exists to control such claims, it is therefore still accorded a certain indispensable respect in most disputes over succession, typically grounded in personal relationships. For example, Clifford, the only first cousin of Richard, realized early in life that he was unlikely to ever be related to anybody more industrious or wealthier than Richard. So Clifford adopted a law that provides for inheritance of all property by cousins, even if the deceased leaves a will. Benjamin, Richard’s only son, adopted a similar law providing for inheritance by children. Grace lovingly took care of Richard for many years, and Richard left all his property to Grace in his will. Both Richard and Grace adopted a law providing that if a valid will exists, it controls the disposition of property after death. As between Clifford, Benjamin and Grace, who holds the weakest property law?
We can compare the parties’ respective antecedent bases for their property claims:
Clifford: relationship of first cousins;
Benjamin: will of the deceased + child relationship;
Grace: will of the deceased + years of labor + long-term caregiver relationship.
Grace’s law is probably the weakest and is therefore likely to prevail; but even if Benjamin’s law is deemed weaker, Richard’s will is executed either way: Grace receives all of the property at issue. Clifford’s law is merely opportunistic and would be enforced only in the absence of any less frivolous claims.
With some types of property left behind after death, wills and familial relationships will carry less weight. Consider, for example, a claim by a nature preserve over certain truffle grounds owned by a deceased truffle gatherer named Trudy. Trudy left the truffle grounds in a nearly pristine state, and only used it for harvesting certain rare truffles that grew there naturally, for her personal enjoyment. The nature preserve is a collective organization that holds title to various tracts of pristine land using methods as described earlier. Suppose, for simplicity, that the preserve makes its claim in the name of one of its member agents, Amy. Amy’s intent is to hold the land for the benefit of the preserve, as a habitat for certain rare animals and plants. Trudy did not leave any survivors who ever made any use of the truffle grounds, and left it by will to her partner Tran, whose law respects the will of the deceased. Tran did not enjoy truffle hunting, and planned to sell the truffle grounds by auction of the International Truffle Association. She needed the proceeds to fund her retirement. If Amy’s law does not respect wills of the deceased, there may be some uncertainty as to whose claim is stronger. A skilled jurist will exploit the uncertainty to assist the Amy and Tran to negotiate a settlement. For example, a settlement under which Tran sells the truffle hunting rights subject to a preservation easement in favor of the preserve via its designated agent Amy would meet the needs of both claimants. If the parties refuse to settle, they will have to live with whatever ruling the jurist decides. In close cases, rational disputants will settle.
As happens under present systems, some people may leave their property to a trust, which is a form of fictional entity. As any other fictional entity, the extent to which it is recognized and respected will depend on the laws of those who interact with its property. Since these laws cannot confidently be predicted in voluntary law societies, fictional trusts will not be commonly used. Instead, property may be given in trust to natural persons, who are charged with the duty of acting as trustee of the property under a contract with the grantor. If the grantor dies, the trust may be enforced against the trustee by a third party beneficiary or surviving parties to the trust agreement. If there are no beneficiaries or survivors, the trust dissolves at the discretion of the trustee.
Death, as it is known today, is usually irreversible; exceptions may exists in fleeting cases such as when people “die” on the operating table but are revived before brain death sets in. Future technological development may change this present reality. After all, heads and entire bodies are sometime frozen, in hopes of later revival. There may come a time when the dead are not beyond hope of revival under conditions that are presently beyond hope. If such a time comes, those awaiting revival may be treated under the law as simply disabled for an indefinite period of time. If this period of time stretches or more than a few year, difficulties with this approach may arise, resolution of which may be left to a time in which the difficulties actually arise. The underlying tension is between a law of the indefinitely disabled, which is frozen and cannot adapt to changing circumstances, and the adaptable law of the living.
The death of the voluntary lawgiver may seem to thrust us into unfamiliar territory. We are accustomed to considering only one law controlling the disposition of property after death. Yet, the differences in fact are not as radical as it may seem, due to other balancing principles such as TROTWET. Discounting the law of the dead may seem superficially troubling, but in the majority of cases will bring about results similar to those provided by widely applied rules of inheritance known today, as illustrated by the foregoing examples. In some cases, death will bring more flexibility for just resolution of conflicting claims than is possible under a monolithic legal system. Applying the law of the living to the property of the dead has the great advantage of freeing the living from constraints imposed by those who cannot breathe life in their flesh ever again, or adapt to changed circumstances confronting the living.
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Voluntary Law Development Association 