Guide to Laws About Death and Dying in the U.S.

Death and dying can be heavy topics, but of course, death is a part of life. On top of grieving for the loss of a beloved member of the family or even a friend, you may have the additional hardship of helping to manage the affairs of the deceased. Here are some legal topics you should know about this difficult issue.

1. Funeral Arrangements

Which methods of disposing of human remains are legal?

In most states the only options for the deceased body are burial and cremation. But alkaline hydrolysis is legal in some states (see below), and composting will soon be legal in Washington state.

Is it legal to compost a human body?

It is currently not legal to perform an aboveground decomposition of a human body anywhere in the U.S. But starting in May 2020, it will be legal in Washington state to compost human remains as an alternative to traditional burial or cremation. This practice of rapidly decomposing the body and turning it into soil is also called “natural organic reduction.”

Is it legal to use alkaline hydrolysis on a deceased person?

Alkaline hydrolysis is a base chemical process that also uses heat, pressure, and water to liquify remains. It is currently legal in 20 states.

2. Inheritance

What happens to a person’s money and property after they die?

If the deceased person has a properly created Will, then the Will generally sets out where and to whom the money goes. But if there is no Will or the Will is not legally valid for some reason, the assets go to certain heirs specified in state law. These default rules for who gets what are called “intestate succession.”

Most states provide first that the money goes to any surviving spouse, and then to any surviving children, split equally. Talk to an “estate planning” lawyer for more. For California, see our Guide to Estate Planning in California.

What is the process for deciding where the money goes after someone dies?

This process is called “estate planning.” The money and property that a person had at the time of their death is called their “estate.” An estate plan generally involves a Will, and may also include other methods of distributing assets, including a “Trust” document or “Living Trust,” life insurance benefits, pensions, and others.

What is the estate tax or the “death tax”?

The estate tax (sometimes derisively called the “death tax”) is a tax collected by the IRS based on a percentage of the total estate of a deceased person. Currently it is set at 40% of the total, but the first $12 million or so is excluded from the tax. This means that if you leave $12M or less to your heirs, none of this will be taxed. This exclusion amount is set to increase each year.

3. Choosing How to Die

Is it legal for a doctor to assist a patient in dying?

As of June 2019, 8 states + DC currently authorize “medical aid in dying,” giving people the right to request medical assistance in ending your life if you have a terminal illness. In addition to Washington, DC, the states that allow this practice include: California, Colorado, Hawaii, Maine, Oregon, Washington, Vermont, and Montana. The laws are sometimes referred to as “death with dignity,” “physician assisted death,” “physician assisted dying” or “physician assisted suicide.”

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How can I ensure that my wishes for end of life care are honored?

You can create an “advance directive,” also known as a living will, to document your wishes concerning medical treatments at the end of your life. However, emergency medical technicians cannot honor your advance directive. The only document they honor is the Do Not Resuscitate (DNR) order.

You can also create a “medical power of attorney,” or “healthcare proxy,” which allows you to appoint a person to make medical decisions for you if you are unable to do so.

4. Suing for Death of Loved One

If a company is responsible for the death of a loved one, can I sue them?

If a company may be at fault for a person’s death, whether an employee or customer or otherwise, the deceased person’s family may be able to successfully sue the company. This is known as “wrongful death.” It is similar to suing for injuries caused by the company.

5. Death Penalty

Is the death penalty legal?

The death penalty is legal in some states but not others. See our Guide to the Death Penalty.


How do I get legal help if a loved one dies or to plan for it?

You should talk to an “estate planning” lawyer.

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Photo credit: Photo by Sam Brand on Unsplash

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