Who wouldn’t want to control things, even after death? The chance that your surviving family will not obey your wishes after you die is exactly why you create a last will and testament. We all long to control where our money and property goes, but shouldn’t people also be concerned with what for some of us is most important of all—where our body goes? William A. Drennan’s R.I.P.—A Financial Incentive to Protect Your Cadaver?, suggests a clever way for individuals to control the disposition of their body through financial incentives. This is valuable to everyone who wishes to have a body disposition different from what family members want for them as well as those who desire a unique or untraditional disposition. Drennan’s suggestion of financial incentives gives everyone what they want. You choose how to dispose of your final remains while your survivors get your cash.
In this article, Drennan points out although people have substantial control over what happens to their property after death, they have less power over what actually happens in the disposition of their own bodies. The article explains that state laws permit family members to override decedents’ instructions concerning the handling of their corpse. To address this, Drennan proposes the use of a financial incentive clause that gives the living family members a gift when and if they comply with a decedent’s specific disposition method. The article looks at the practicalities, enforceability, and public policy implications of this proposal while also uncovering philosophical tension between the rights of the dead and the interests of the living.
Historically, disposal of a body was limited to burial or fire cremation, which are still the most common and socially acceptable ways people choose for their final resting place. In recent years, however, the range of lawful ways to dispose of a corpse has expanded to include human composting, alkaline hydrolysis, cryogenic freezing, and plastination. There are accounts of people requesting anything from being buried in a Ferrari to “green burials” where eco-friendly or no embalming fluids are used. Consequently, as newer, unique options become available, traditional burial and cremation practices are declining. These developments increase the likelihood that a decedent’s wishes may conflict with the preference of surviving family members.
The author argues that, despite society’s respect for the dead, state laws and regulations often do not treat a person’s disposition instructions as legally binding. Instead, Drennan explains that courts frequently view these instructions as suggestions rather than directions that must be enforced. Most states, for example, have statutory hierarchies for determining who has decision-making authority, typically granted to surviving spouses or next of kin. Even when there are statutes that honor a decedent’s instructions, ways to enforce them are limited because decedents cannot personally advocate for their own interests. Courts are reluctant to disturb a completed burial or cremation, which makes remedies for violating the decedent’s instructions hard to correct or completely ineffective. As a result, Drennan explains, the living relatives often have ultimate control of the decedent’s body, even when exercising that control goes against the wishes of the decedent.
To resolve the issue, Drennan suggests conditioning a testamentary gift on a designated survivor’s compliance with the testator’s desired method of disposition. Drennan believes that financial incentives for compliance will suffice to ensure that the decedent’s disposition instructions are carried out. The article discusses drafting considerations, including the importance of choosing an appropriate advocate, deciding how much the incentive will be, and incorporating a gift-over provision if the condition is not met. Drennan also stresses the need for clear documentation and verification procedures to ensure that the instructions are met before the testamentary gift is distributed. This drafting technique shifts the power away from the statutory default towards the decedent’s instructions through the potential wealth gain for the person carrying out the instructions. Drennan considers this a strong strategy, although there is no case law addressing the enforceability of clauses such as this one, leaving its effectiveness unknown.
The main concern with this type of clause is that courts might deem it void as against public policy. Some may argue that quick and efficient disposition is essential, that funeral providers require certainty, and that the cost of the disposition method could lead to family conflict. A restriction on the continuing influence of the “dead hand” is potentially enough reason for these clauses to be held unenforceable. Drennan explains that courts may view this kind of control by decedents as injurious to the public welfare, and therefore a violation of public policy. Another issue the author addresses is the uncertainty with regard to funeral homes. While families are sorting out potentially complicated instructions from the decedent, funeral homes might have to store the person’s remains, creating an unideal situation for the funeral director. Lastly, Drennan acknowledges that “leaving it to the living” would promote harmony and compromise within the family, where complications arising the decedent’s instructions could potentially cause a rift. Drennan counters all these concerns with the fact that enforcing such clauses would not harm public welfare but merely reinforce the respect we have for personal autonomy and testamentary intent.
Drennan concludes his article by emphasizing that many individuals are more likely to care about where their cadavers go than any piece of property or money. Beyond this, the article dives deep into philosophical questions about whether postmortem bodily interest actually merits protection by the law. While some theorists argue that the dead can no longer experience hurt and therefore need no protection, others stress the cultural and moral importance of respecting one’s wishes after death. Ultimately, Drennan suggests that the law may be wrong in granting the dead so much control over their property, while according them less say over what happens to their own bodies after death. The proposed financial incentive clause to a designated survivor serves as a practical reform and a challenge to balance the power of the living over the wishes of the dead.
[Special thanks for the outstanding assistance of Allison Monacelli, J.D. Candidate May 2026, Texas Tech University School of Law, in preparing this review.]
