How does one define death, and to what extent can we confidently say someone is dead enough? The answer to this question varies among our jurisdictions. Before initiating the administration of a deceased person’s estate, the primary question is whether the individual is deceased. Despite the existence of the Uniform Determination of Death Act, there are notable differences among states regarding the indicia of death, leading to the possibility of someone being declared legally dead in one state but considered alive in another state. The challenge of determining death is further complicated when considering how conflicting simultaneous death statutes may apply to potential beneficiaries. In this thought-provoking piece, Prof. Alyssa DiRusso delves into the intricacies of determining legal death by highlighting the challenges posed by advancements in medical technology and the inconsistencies in state laws. Prof. DiRusso proposes two possible solutions to create a clear and consistent standard for determining death: the domicile rule and the decedent situs rule.
Historically, the determination of death was straightforward, with doctors relying on physical signs like pulse, breath, and fixed pupils. However, history showed enough misjudgments to create a market for air tubes in coffins…just in case. Before the twelfth century, death was considered to be the “cessation of all vital functions and signs.” Medical advances challenged this, as respirators allowed cardiorespiratory activity even after irreversible brain damage. Further, organ transplantation complicated the definition as organ donors needed to be dead but not too dead to preserve organ function.
In 1968, the Harvard Medical School proposed accepting irreversible loss of brain function as an alternative to traditional cardiorespiratory cessation. While most states eventually recognized brain death, inconsistencies led the Uniform Law Commission to promulgate the 1978 Uniform Determination of Death Act (UDAA).
The UDAA provides that an individual who has sustained either (1) the irreversible cessation of cardiopulmonary activity or (2) the irreversible cessation of all brain activity is dead. Despite widespread adoption, states have modified UDDA’s language, resulting in non-uniform rules. For example, while most states incorporate irreversible cessation of circulatory and respiratory functions, Arizona and North Carolina exclude it. Moreover, the issue of how to handle brain death has become highly controversial, with varying approaches adopted across the United States. Different state laws complicate the matter in that doctors in some jurisdictions cannot determine brain death without family consent. Other state laws give substantial deference to religious beliefs, and personal or cultural objections which can all influence the determination of death.
Prof. DiRusso highlights the issues that may arise by recounting the tragic case of Jahi McMath. Following routine surgery in her home state of California, Jahi was pronounced brain dead. Jahi’s parents faced years of legal challenges as California adhered to its version of the UDAA, allowing a “reasonable brief period of accommodation” before withdrawing life support. Jahi’s parents, seeking more discretion, moved her to New Jersey, where laws permitted greater flexibility in medical decisions for individuals without brain function. This relocation created a five-year discrepancy in the declaration of death between California and New Jersey, leading to additional disputes with the IRS regarding income tax claims for a deceased dependent. While we lack clarity in determining death, our existing system enables a grim form of forum shopping.
DiRusso explores another layer of complexity: how simultaneous death statutes address conflicts of law and the resulting legal implications for inheritance and property distribution. Whether a beneficiary has survived the benefactor varies among states and can lead to confusing results. Further, this confusion is compounded if decedents specify a different survivorship standard in their estate planning documents, adding another dimension to a tricky situation.
The impact of these conflicts of law extends beyond the realm of determining death and property distribution. The confusion surrounding these issues affects not only those administering an estate but also a wider spectrum of entities, including creditors, life and health insurance companies, hospitals and health care providers, tax authorities, and others. Prof. DiRusso proposes two potential solutions to resolve these conflicts: the domicile rule and the decedent situs rule. She clearly explains the benefits and drawbacks of each and ultimately endorses the decedent situs rule.
First, the domicile rule proposes determining death based on the legal residence of the deceased individual. This approach provides familiarity as it is the standard law for other provisions relating to a decedent’s estate and, thus, more comfortable and harmonious for courts to apply. Additionally, this rule eliminates the possibility that interested parties will relocate bodies to alter the legal recognition of death. However, the domicile rule could prove administratively impractical, particularly in situations where a hospital is unaware of a patient’s domicile.
Second, the decedent situs rule suggests determining death based on the location of the body at the time of the determination. The main strength of this option lies in its administrative feasibility, as the physical location of the body arguably has the strongest relevance in establishing whether someone has died there. At the same time, the situs rule increases the risk that interested parties will move a person on the precipice of death to change the applicable state laws. Furthermore, this approach raises concerns about potentially infringing upon a state’s right to determine the death of its own citizens.
Prof. DiRusso prioritizes administrative feasibility as a critical factor in her analysis, which leads her to ultimately support the decedent situs rule. In her comprehensive examination, she recommends integrating this rule into key initiatives underway, including the revised Restatement of Conflict of Laws and the Uniform Law Commission’s Conflict of Laws in Trusts and Estates Act. As these drafts remain works in progress, she also offers recommendations for existing acts, including reforming the Uniform Determination of Death Act, the Uniform Probate Code, and the Uniform Simultaneous Death Act. Through these recommendations, she maps out a comprehensive path forward that ensures predictable and reasonable outcomes.
As rightly pointed out by Prof. DiRusso, the complexities arising from the ambiguity in end-of-life matters are good problems to have. The remarkable achievements in medicine, such as the successful transplant of a genetically modified pig heart enabling a patient to restart cardiac activity, are truly astounding. As medical advances create more uncertainty, Prof. DiRusso emphasizes the pressing need for clear conflict of law jurisprudence to establish the governing state law in determining death. I value the clarity in her analysis, the evaluation of the advantages and disadvantages of her proposals, and the thorough recommendations on implementing the decedent situs rule in upcoming legal revisions. Prof. DiRusso offers a valuable examination of this critical conflict of laws issue and the urgent need to confidently answer the question: Is he dead?
[Special thanks for the outstanding assistance of Julia Koert, J.D. Candidate May 2024, Texas Tech University School of Law, in preparing this review.]
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