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“History is nothing but a pack of tricks that we play upon the dead” – Voltaire

The jury pool?

The jury pool?

Should you find yourself rising from the grave, don’t panic.  By all means, shake the dirt off and treat yourself to some fresh blood or brains.  Having asserted your undeadness, you should immediately seek legal representation.  You may have noted that a world where the dead walk is popularly depicted as a “target-rich environment”, where the mere fact of your resurrection appears to strip you of your right to life, liberty, and the pursuit of happiness, particularly when it comes to avoiding the nastier repercussions of your ex-person status such as summary beheading or a stake through the heart.  Acting quickly to retain effective legal counsel can forestall some of the more unpleasant and likely consequences of rising from the grave, from execution by vigilante death squads to unlawful detention by the Centers for Disease Control, not to mention protect your assets from estate taxation and the premature depredations of probate claims.  The time has come to put the “corpus” back into Habeas corpus.

Your initial concern should be what state you are in.  I’m not talking about your relative degree of decay or size of your fangs.  You need to know which state law applies to your situation, because believe it or not, you are not legally dead in the same way in different jurisdictions.  For instance, in many states, you can be pronounced legally dead when a qualified medical professional determines that your brain activity has ceased, but in New York and New Jersey, in order to be declared legally dead, your lungs and heart must also have stopped completely.  Legislators have recognized that this could be a problem and in 1981 the National Conference of Commissioners on Uniform State Laws, in cooperation with the American Medical Association, the American Bar Association, and the President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research approved a draft state-level law called the Uniform Determination of Death Act  stating “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.”  This wording regarding the determination of death has been adopted by many, but not all states.  As you have managed to claw your way up from six feet under, and are now loose in the world (and as there is little acceptance of supernatural causality in modern jurisprudence), the fact that you are (1) ambulatory, and (2) pursuing a goal, albeit an unsavory one involving the consumption of human flesh or plasma, is highly suggestive that some sort of central nervous function is operative and an undefined form of circulatory and respiratory function must be assumed.  Everyone agrees that jellyfish are living organisms and they have neither circulation nor respiratory systems as we would understand them in living humans.  The circumstances and laws under which you were originally declared dead will be an important part of your subsequent litigation to re-establish your status as “not-dead”.

This will be an uphill battle, as even the obviously living (under the law) have frequently had a great deal of difficulty re-establishing their status as “living” once they have been declared dead, as evidenced by the legal quagmire faced by one Donald Miller Jr. of Findlay, Ohio.

Donald Miller Jr. went to court this week to ask a county judge to reverse a 1994 ruling that declared him legally dead after he had disappeared from his home eight years earlier. But the judge turned down his request, citing a three-year time limit for changing a death ruling. Hancock County Probate Court Judge Allan Davis called it a “strange, strange situation…We’ve got the obvious here. A man sitting in the courtroom, he appears to be in good health,” said Davis, who told Miller the three-year limit was clear. “I don’t know where that leaves you, but you’re still deceased as far as the law is concerned,” the judge said. Miller resurfaced about eight years ago and went to court so that he could get a driver’s license and reinstate his Social Security number. His ex-wife had opposed the move, saying she doesn’t have the money to repay the Social Security benefits that were paid out to her and the couple’s two children after Miller was declared dead (Huffington Post, “Ohio Judge Tells Man He’s Still Legally Dead”, October 10, 2013).

When even healthy, red-blooded Homo sapiens face Sisyphean tasks re-establishing a living legal status, the fact that you are standing in court shedding bits of decaying flesh or recovering from a recent bout with vampirism can only be regarded with a prejudicial juridical eye.  Do not let these difficulties deter you from seeking protection under the law, as your future employment and livelihood are at stake, not to mention avoiding your own murder, quarantine, or enslavement.  You must steel your reanimated corpse, as this is only the first of many legal obstacles you will face as a member of the living dead, a historically unprotected and stigmatized class.  The list of rights which have been stripped from you upon your death is staggering, and you must be willing to fight for them.  Both our innate fear of the dead and the culturally ubiquitous desire to “honor” the dead have resulted in a labyrinthine set of rules that have to be navigated by both the dead and the living with respect to the undead.  Unfortunately for you, most of these arcane rules are concerned with how to distribute your stuff upon death (from your wealth to your organs).

Many legal rules suggest that the dead do not have rights. Often, the dead cannot marry, divorce, or vote. The executor of an estate cannot sue for the libel or slander of a deceased person. And the right to medical privacy substantially erodes at death, giving family members the ability to obtain sensitive information about a decedent’s medical conditions. On the other hand, various legal institutions have spent considerable time trying to protect the rights of the dead. As a result, most testamentary distributions, burial requests, and organ donation designations are held to be valid even if they contradict the preferences of the living. Certain destructions of property requested in wills are honored even though they may have a negative impact on the living. Some states even statutorily recognize a posthumous right of publicity, and recent case law suggests there may be a posthumous right to reproductive autonomy (Smolensky, 2009, p763).

Now presumably the undead cannot live on brains alone, and it stands to reason that the resources you accrued while alive (if not already disbursed among your greedy little beneficiaries) would facilitate a more comfortable afterlife.  The Egyptian pharaohs certainly thought so.  Tax experts disagree on whether estate tax law should apply to the living dead, but as a tax on the transfer of the estate of one who was only “temporarily” dead, it is an open question as to whether (1) property distributed upon death should be returned to the decedent upon re-animation, (2) the taxes paid on the estate of the decedent are deductible or creditable as overpayment, and (3) if neither of the above are considered true, is earned income subsequent to rising again taxable under estate tax law?  Legal scholar and expert on the tax implications of a zombie apocalypse, Adam Chodorow pointed out that the lack of uniformity in the legal definition of death across the states (and no doubt the world) also causes problems with issues of estate and income taxes levied on the undead.

Of course, the question we are trying to answer is not whether a person who becomes a zombie should be considered dead under state law.  Answering this question is only the first step of the analysis. Ultimately, our goal is to determine whether such a person should be considered a decedent for federal estate tax purposes. Unfortunately, this inquiry adds yet another level of complexity. Tax law typically piggybacks on top of state law. Normally, someone considered dead for state-law purposes would be considered dead for federal tax purposes as well. However, federal tax law deviates from state law in a number of situations, including what constitutes a devise, bequest, or inheritance. Thus, it is not unreasonable to think that a person could be dead for state-law purposes, triggering probate and a distribution of assets, but not a decedent for federal tax purposes. Conversely, someone alive under state-law definitions could be deemed dead for federal tax purposes (Chodorow, 2013, p1219).

Nobody said dying would be easy, but returning from the dead is likely to be even harder.  If we ever expect the living dead to become productive members of society, it behooves us to address the legal implications of rising again and afford them legal protections that prevent an all-out war between the living and the undead, and mobs of unruly corpses tossing tea in Boston Harbor and chanting, “No taxation without respiration!”  We must undo the long-held prejudices of Patrick Henry’s “Give me liberty, or give me death” and re-purpose it for modernity as “Give me liberty, or give me death, and give me liberty afterwards as well”.  Only when we have shed our confidence in the superiority of the living over the non-living can we begin to craft a culture where we judge each other not on the color of our corpse, but on the content of our character, and as Alan Moore said, is culture itself not “just a shambling zombie that repeats what it did in life; bits of it drop off, and it doesn’t appear to notice”.

References
Carriere, Jeanne Louise.  “The Rights of the Living Dead: Absent Persons in the Civil Law”.  Louisiana Law Review 50:5, p901-971.  May, 1990.
Chodorow, Adam.  “Death and Taxes and Zombies”.  98 Iowa Law Review 1207.  2013.
Smolensky, Kirsten Rabe.  “Rights of the Dead”.  Hofstra Law Review 37, p763-803.  2009.

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