Law of the Undead

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
Jurisdiction: Texas

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
Jurisdiction: Texas

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.
 The secondary sources from that search point us to another possible source of guidance:  the Uniform Determination of Death Act.  See, e.g., Brain Death Revisited:  The Case for a National Standard, 36 J.L. Med. & Ethics 824.  While Texas hasn’t adopted this act, several other states have, and Texas’s law does not vary that greatly from the uniform act.
Search: Uniform Determination of Death Act
Jurisdiction:  All States
The law in West Virginia, W. Va. Code, § 16-10-1, does not vary that greatly from that of Texas.
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.
But the question remains, does this cover your nearly-departed zombie friends?  Conventional wisdom about zombies would dictate that brain function hasn’t ceased, but what of respiratory and circulatory function?  Does a zombie have to have a beating heart and breathing lungs?  Without an actual zombie to examine, this will likely remain an open question.  I think it’s safe to say that the attorney who find himself confronted with this issue will, indeed, have a question of first impression.