October 24, 2012
Given the recent national fascination with zombies, sparking everything from specialized zombie-kiling ammo (Zombie mania! Silly and serious zombie shootin’ gear, 2012 WLNR 18061491) to zombie-themed nights on the town (Zombie Do’s and Don’t: A Beginner’s Corpse, 2012 WLNR 21742292), we figured, why shouldn’t we get in on the action too?
The end result of that impulse is this post, and possibly a few more, taking a tongue-in-cheek look at some of the possible legal implications should you or a loved one, find yourself among the undead.
And we wanted to start with something that would clearly be at the forefront of every estate-planning-lawyer-to-the-undead’s mind: Can you probate the will of a zombie?
Using Texas as our starting point (just because), let’s look at the law surrounding when a will can be admitted to probate. I used this search as my starting point to get a foothold on Texas law:
Search: admit will to probate
In looking at the statutes that are returned in my results, I jump to V.A.T.S. Probate Code, § 88, Proof Required for Probate and Issuance of Letters Testamentary or of Administration. According to that section, the first thing you have to submit is proof that the person is, in fact, dead.
This would seem like a relatively easy element, but what of a zombie? How does one determine death? Time for a new search:
Search: determination of death
We find our answer again in statutes under V.T.C.A., Health & Safety Code § 671.001, Standard Used in Determining Death.
(a) A person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions.
(b) If artificial means of support preclude a determination that a person’s spontaneous respiratory and circulatory functions have ceased, the person is dead when, in the announced opinion of a physician, according to ordinary standards of medical practice, there is irreversible cessation of all spontaneous brain function. Death occurs when the relevant functions cease.
Jurisdiction: All States
An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.