Immortality and the Law

Immortality and the Law: The Rising Power of the American Dead, by Ray D. Madoff, Yale University Press $26 (£18)

Two rough principles have governed the way we think about our duties to dead people. The first is summed up in G.K. Chesterton’s aphorism: “Tradition is the democracy of the dead.” The second is: “You can’t take it with you.” To put it crudely, while society has let dead people “vote” (in that it respects their traditions), it has not let them own property (since there would be no point to it). Things are changing, though, in the US. To judge from Immortality and the Law, a sparkling polemic by the Boston College law professor Ray Madoff, US courts and lawmakers have recently made a number of bad decisions that have turned this arrangement upside down. We hold the wisdom of previous generations in ever lower esteem. But, Madoff convincingly argues, we are granting the dead ever more elaborate property rights, which are crowding out the rights of the living.

Unlike most western countries, the US has an almost unfettered freedom of testation. Despite draconian alimony laws and perennial campaign rhetoric about cracking down on “deadbeat dads” who father children they cannot support, the responsibility to support dependants ends with death. A father of 10 can earmark every last nickel of his fortune to some Ozymandian monument to his own ego, even if his children wind up wards of the state. This freedom to disinherit gives testators wide latitude to write the kinds of malevolent wills unseen in most countries since the era of Middlemarch. According to Madoff, US courts generally uphold wills that make payment of an inheritance conditional on an heir’s agreement to convert to (or abandon) a certain religion or marry (or divorce) a certain woman. If you don’t like the conditions, be glad you weren’t disinherited outright.

Since the time of Andrew Carnegie, the American rich have given to “causes” as well as their families. Whether or not this teaches children the virtues of hard work, as Carnegie hoped, it serves what the legal scholar Lewis Simes called “the vanity of the dead capitalist”. Although the US tax code subsidises such bequests, Madoff is not certain they are a net social good. The deductibility of rich people’s charitable contributions means that the government loses out on revenue it would have received under a normal succession. Poorer taxpayers provide a “matching grant”, as Madoff puts it, to the charity of the plutocrat’s choice. Through the Gates Foundation’s vast philanthropic projects abroad, for example, “the American public has effectively underwritten several billion dollars’ worth of foreign aid by private individuals, even though polls show Americans are ambivalent about using tax dollars for such assistance,” Madoff writes.

Until recently the law has been sceptical about charitable trusts – rightly so, Madoff believes. When you have large, dedicated pools of capital sheltered from the tax system, they build up faster than the capital in the workaday part of the economy. In England until Henry VIII and in Mexico before Benito Juárez, the church accumulated as much as half the nation’s wealth, with violent consequences. That is why countries long maintained laws against mortmain, or the “dead hand” control of assets. In the US, trust law used to respect a “rule against perpetuities”, but legislators have steadily eroded this principle over the past two decades.

Trust law is at the heart of Madoff’s discussion but she deals with a range of macabre and infuriating subjects besides. With advances in organ transplantation since the 1960s, a corpse is now a more valuable object – a mother lode of medical resources. A decade ago, the Los Angeles Times discovered that the local coroner’s office was selling corneas to an eye bank. Authorities are scrambling to tap this new source of funds, replacing laws under which citizens must register to donate with laws under which they must register not to.

Madoff also notes how the posthumous ownership of a “right of publicity”, in tandem with ever-lengthening copyrights, can create unlikely windfalls. Martin Luther King Jr’s descendants sued USA Today and CBS for reprinting and re-broadcasting his “I Have a Dream” speech, and received $800,000 for permission to use his image from the foundation that wants to put a monument to him on the National Mall.

In the Clinton era, the political consultant James Carville quipped that, if there were such a thing as reincarnation, he’d like to come back as the bond market, since “you can intimidate everybody”. After reading Madoff’s assessment of the tightening grip of the dead on our resources, Mr Carville might not feel the need to come back at all.

The writer is an FT columnist

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