Taking It With You?

Humans sometimes make interesting choices, both in life and at death. It is not surprising the number of individuals who want to be buried in their grave with particular items that have emotional, sentimental, and sometimes even intrinsic value. This desire to take it with you often becomes public knowledge, especially when celebrities are involved. A few of the more entertaining examples of buried items with a celebrity over the years include:

• George Burns was buried with three cigars;
• Humphrey Bogart was buried with a whistle;
• Bela Lugosi was buried in his Dracula cape;
• John Kennedy was buried with a whale tooth that was engraved with the Presidential Seal;
• Tony Curtis was buried with a Stetson hat, an iPhone, his Navy medals, and seven packets of Splenda;
• Whitney Houston was buried wearing $750,000 of jewelry; and
• Sammy Davis Jr./ was buried with $70,000 of jewelry (but his widow subsequently had his body exhumed and the jewelry removed to pay Sammy’s taxes).

Another notorious example is when a flamboyant Beverly Hills oil heiress was buried sitting in her Ferrari wearing a lace nightgown “with the car seat slanted comfortably.” (I wonder if this internment prompted Stevie Ray’s Cadillac Coffin lyrics?)

Savvy casket manufacturers now cater to what their customers want and produce caskets that include “memory drawers” and secret compartments to house the decedent’s prized possessions.

While these burials are arguably legal since the decedent owned the item that they are buried with, there can be limits on implementing these whimsical or “capricious” wishes found in a Will.

Public Policy Limits: While the celebrity examples are entertaining, they also carry a cautionary tale. Some “take-it-with-me” provisions might not be enforced by courts that preside over the decedent’s Will. While the law strives to honor a decedent’s wishes and to protect his or her interests and it adheres to the principle of an individual’s autonomy, society can impose some limits on that autonomy. Practically speaking, the decedent’s desire to be buried with their property is a form of property destruction, whether the decedent’s body is to be buried in a $150,000 Ferrari, or with only three cigars. While an individual is free to destroy their own property while alive, courts tend to be hostile, or at least highly suspicious, to the testamentary destruction of the decedent’s valuable assets.

Grave Robbery: For example, in one well-publicized court decision, the decedent, Eva, directed in her Will that she be buried with her “diamonds and other jewelry, together with certain enumerated photos.” The person who administered Eva’s probate estate had failed to place her diamonds and jewelry in her coffin before she was buried. After Eva’s casket was sealed and buried, the fiduciary then asked a probate judge to exhume Eva’s body so the missing jewelry could be placed beside her body. The judge refused to exhume Eva’s body to add her diamonds and jewelry. Eva’s direction in her Will was legally unenforceable and against the state’s public policy. Eva’s direction to be buried with her jewelry was against that state’s public policy, and to enforce the direction found in Eva’s Will would “encourage grave robbery” since her Will was a public document that was filed with the local probate court. Rather than focus on the whether any grave robbery was likely to occur, the judge emphasized the potential harm to the public’s interest from encouraging such behavior and “the possibility of desecration, looting, and destruction of burial grounds.” Meksras Estate, 63 Pa. D&C 2d 371 (C.P. Orphan’s Court 1974).

In contrast, this public policy against grave looting apparently was not of concern when the heiress was buried in her Ferrari, since she had the foresight to instruct her estate’s representative that her Ferrari and body were to be buried in a 9 foot by 17 foot unusually deep grave and then covered with cement to deter any potential grave looting.

Property Destruction: Another legal concern to unusual directions to be buried with valuable items is a state’s public policy against unreasonable property destruction. While owners of personal property are free to destroy or misuse their property while they are alive, their right to destroy their valuable property at death is much more restricted as a matter of a state’s public policy. For example, the law prohibits the destruction of visual art that is “of recognized stature” during the artist’s lifetime. The famed 1960s author Jacqueline Susann directed the executor of her estate to burn her diary upon her death, a diary that was later valued at $3.8 million. The same with the author Franz Kafka who wanted the only copies of his then-unpublished masterpieces, The Castle and The Trial, destroyed, but that direction was ignored because a court concluded that the manuscripts’ destruction would make society “worse off.” In short, being buried with priceless items can easily be viewed as a form of destruction-at-death directive which is contrary to many states’ public policy. While these two authors could have easily destroyed their manuscripts while alive, they were denied that right on their deaths.

This limitation on the destruction of one’s property at death is not limited to artists. One Will provision called for the razing of the owner’s home after her death. A judge presiding over her Will’s admission to probate found that Will directive to be invalid because it was “unexplained, capricious, and harmful to the decedent’s neighbors.” The trial judge balanced the conflict of the right of the dead to control their own property against the “rights of the living.” Eyerman v. Mercantile Trust Co., 524 S.W. 210 (Missouri Court of Appeals, 1975.) Consequently, while a decedent is supposed to be treated with dignity and their autonomy respected about their own property and what is to be done with it, courts have at times ignored this principle when it appears that the living will suffer a great hardship (e.g., their heirs impoverished) or granting a posthumous right to destroy will be wasteful and harmful to society. In the razed house case, the court concluded: “Further, this power of the state is one of inherent sovereignty which allows the state to ‘say what becomes of the property of a person, when death forecloses his right to control it.’”

Practical Considerations: While the decedent’s idiosyncratic wishes to be buried with valuable items occurs with limited frequency, it is possible that the public disclosure through a Will filed with the probate court could lead, if not to grave robbery, to family disputes, or the possible exhumation of the body to retrieve the valuable items such as when Sammy Davis’s widow reopened his grave to retrieve jewelry to pay his tax liabilities. Or a court concludes that the Will’s direction to bury valuable items is against public policy since it invites gravesite desecration or capricious waste. To deal with these public policy limitations, consider the following:

1. Use Letter of Wishes: It is better for the decedent’s Will to simply refer to the decedent’s separate letter of wishes where these burial-destruction desires are expressed, but which does not become a matter of public record. Some courts have based their refusal to permit valuable property to be buried with the decedent on the grounds that the probate process arguably makes the state a “partner” of the wasteful decedent.
2. Use a Revocable Trust: If the concern is that a probate court will not permit the decedent to be buried with valuable items, then an “I want to take it with me” direction placed in a revocable trust, which is not filed with the probate court. This assures that the public will not know that the decedent is buried with valuable items, and it avoids the ‘invitation to grave robbery’ concerns, or a court’s conclusion that the state is somehow a “partner” in the decision to destroy valuable property.
3. Use a Funeral Representative: Under Michigan’s Funeral Representative statute, a “take it with me” direction could be included in the Funeral Representative designation form. The person named as the decedent’s Funeral Representative must act as a fiduciary to carry out the decedent’s wishes, including the handling, disposition, or disinterment of the decedent’s body. This would assure the decedent that the fiduciary in charge of their estate and assets will not ignore their testamentary wishes.

The Egyptians were buried with their priceless possessions. Why can’t we? If the idea to be buried with one’s cherished possessions is more common than we realize, and a goal is to avoid questions of vague public policy, it makes sense to not include “take it with you” provisions in a Will that either creates the invitation to grave robbery (and thus implicates public policy concerns) or where a court views itself as a ‘partner’ that condones waste. Use either a side letter-of-wishes or a revocable trust to identify those specific ‘take it with me’ instructions. And if there is a concern that the person put in charge of the decedent’s estate will not honor the decedent’s dead-hand control and destruction of property, include directions in the decedent’s formal designation of a Funeral Representative who is legally bound to follow their instructions about their specific burial wishes.