My initial reaction to the decision of Judge Larry Seidlin’s weepy decision to hand over the corpse of Anna Nicole Smith to the lawyer of her infant daughter was wrong. In truth, I was probably reacting more to the clownish performance of the judge than the decision itself. I mean, come on, crying for this? And you’re the judge? If the judge can’t even comport himself properly, how on earth could he make the right decision?
I am sure that I was also seeing this overdramatized non-drama through my eyes as a parent. Any parent would feel the same way. If your child died, leaving no spouse or adult child survivor, it is only natural that you as a parent would step in and act as next of kin. It’s the most natural thing in the world, but like everything else involving Vickie Lynn Marshall, aka Anna Nicole Smith, there wasn’t anything natural about this.
So my curiosity was piqued, and I decided to take a look at the legal issues involved. It turns out that a corpse has a rather unique status under common law. (Common law is the law that applies if the state legislature has not passed a statute that specifically addresses the issue.) A corpse is not considered property and cannot be owned. Moreover, as property, it cannot be bequeathed or inherited, meaning that a person cannot control the disposition of his own corpse by his or her will.
So if a corpse is not property, what is it? The law does not really answer this question, the issue being not what to call it, but what to do with it.Â The answer is that the next of kin of the deceased have both the duty and the right to dispose of the corpse. If the next of kin can’t agree, a court will make a decision, and in making the decision the wishes of the deceased should be taken into consideration, as much as practicable.
All of this makes perfect sense if you keep in mind the fact that, whatever is to be done with a corpse, it should be done quickly. Until recently we did not have refrigerated morgues, and the last thing in the world anybody wanted was for a corpse to sit around for the time needed to decide a drawn out will contest or lawsuit. That’s why a corpse was not regarded as “property,” and that’s why it was the responsibility of the next of kin to act, and act quickly.
But who are these next of kin? There really is no fixed definition, and it is just about anybody related by blood or marriage who is willing to get involved. Remember that a corpse quickly becomes a nuisance, and the object is to get it disposed of properly, but quickly. There isn’t much motivation to fight over a corpse, I mean, it has no value, can stink to high heaven, and costs a fair sum to get rid of. Therefore, as a practical matter, the only people who are at all inclined to want the corpse are motivated by higher principles, usually love and respect for the deceased.
In the case of Anna Nicole Smith, however, I take a more cynical view, and I suspect that one would have been hard pressed to locate any higher principles in Judge Seidlin’s courtroom, even behind the bench. But just because higher principles shaped the law does not mean that they are required to apply the law, and as often happens in a courtroom, higher principles are pressed into service by those generally unacquainted with them. In any case, when the next of kin can’t agree, the judge has to decide. How does the judge decide? I found an old New York decision from 1899 that addresses this exact question. In the words of the learned Judge Bischoff:
When decent burial has been had, the further disposal of the corpse must depend upon questions which have nothing to do with assumed personal rights of the surviving relatives. The wishes of the deceased, as expressed in his lifetime, or implied from the circumstances of his life and death, and the natural feelings of mankind for propriety and decency, must be considered; and, so far as the wishes of the relatives are concerned, the matter involves no question of legal damage, but has to be determined, through an exercise of sound discretion in each particular case, with regard to the sensibilities of the parties.
In other words, the judge tries to figure out who is the kin with the closest ties to the deceased. In the 1899 case, the dispute was between the widow and the brother of the deceased. It turns out that the deceased was estranged from the widow and had not lived with her for some years and had no desire to be reunited with her in the afterlife. The brother was closer to the deceased and the widow lost.
So my initial belief that Anna Nicole Smith’s mother should prevail was wrong. She was estranged from her daughter. While ANS clearly had a complex and unconventional web of personal and intimate relationships, her mother was not part of them. That is sad and regrettable, but it was not Judge Seidlin’s role to heal that relationship.
If not to the mother, then to whom? The concept of next of kin is flexible enough to have included Howard Stern, but that might have offended “the natural feelings of mankind for propriety and decency” for reasons that are obvious enough. That pretty much leaves the infant child, represented by a lawyer appointed to look after her interests. Obviously the infant has no understanding of what is going on, and it is doubtful that the decision where to bury ANS will be of any serious consequence to the child in the future. In the final analysis, a decision had to be made, and the child’s lawyer became the best candidate, not because of her personal feelings or regard for the deceased, but precisely because she was free from any self interest.
That leaves just one question in my mind — what was Judge Seidlin crying over?