Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 5 (2026)
William & Mary Law Review
Abstract
This Note argues that next of kin have property rights in the remains of decedents, as opposed to a quasi-property right in their burial. Changing this distinction will allow courts to address wrongs committed against human remains through remedies traditionally available for harms to property, thereby incentivizing institutions, such as prisons, to exercise care and transparency in dealing with human remains. Treating human remains as property will result in courts applying concrete tests, rather than assessing the infringement of a vague quasi-property right, in cases involving human remains. If courts apply a property standard, next of kin will have material, defensible rights in human remains, and institutions that handle human remains will be held accountable for their conduct when they infringe upon those rights.
Part I provides a general history of how jurisprudence surrounding human remains developed into its current state. Part II uncovers the misinterpretation and misapplication of seminal legal texts commonly used to deny property rights in human remains. Part II.A dispels the argument that human remains were under the exclusive jurisdiction of England’s ecclesiastical courts and analyzes criminal and civil English cases from 1682 to 1857 that recognized property rights in human remains at common law. Part II.B corrects the misconception that all areas of the law under ecclesiastical control were excluded from the jurisdiction of American courts. Part III identifies the property rights that next of kin should have in human remains based on the common law precedent discussed in this Note.
Unless courts recognize and correct their longstanding error of denying the existence of property rights in human remains, families are doomed to have their dearly departed pillaged and defiled by institutions that benefit from the entrapment of the dead in the purgatory between personhood and property.
This abstract has been taken from the article's introduction.