Wednesday, May 25, 2011

Estate Planning: To My Vampire, If Any

Today we present the first academic article addressing legal issues of the undead. Our guest author is Steven M. Silva, Esq. His bio follows the article.

To My Vampire, If Any

Steven M. Silva

It is axiomatic that dead people cannot hold property. For one thing, their hands no longer have the ability to hold anything. The result of this physical and legal inability to hold property while deceased is the “estate” system. Upon expiration, the decedent’s estate takes all of decedent’s property that is not otherwise disposed of according to contract (life insurance) or operation of law (community property, joint tenants right of survivorship). The estate is then probated, and the decedent’s legal existence ceases.

Recent developments in metahuman rights have raised havoc with traditional estate planning. This article attempts to tackle best practices for attorneys dealing with clients wishes regarding vampires. This article does not attempt to establish an exhaustive review of this emerging area of law, but focuses on ways that attorneys can ethically insure that they protect their clients and themselves. This article assumes familiarity with basic precepts of estate planning and a basic understanding of recent revelations regarding the undead.

Whither the Vampire?

A vampire, as we are all aware, is a reanimated dead person (commonly referred to as undead). By operation of law, once a person has died they no longer own their property. The vampire who “wakes up” may be rudely surprised to learn that the house they have reanimated in does not belong to them. It belongs to the estate of their former human self. This poses a grave problem. A vampire may well consider himself to be the same person who died. It is manifestly problematic to say that such a person no longer owns their chattels and real property.

The “Undead Aren’t Dead-Dead”, or the “Wait and See if He Stays Down” Theory.

One possible solution is found by analogy in many States’ modern approach to the Rule Against Perpetuities, the wait and see approach. If the undead are deemed to have never been truly dead, then it is easy enough to wait and see if the ostensibly dead individual revives in some form. By sheer operation of law, if a person becomes a vampire, their property rights shall be undisturbed.

It is easy enough to establish a window for revival based on standard vampyric timelines. A ninety-day hold on probating an estate to wait and see whether a person will revive as a vampire appears to be a cautiously liberal timeframe, and likely applies as an apt timeline for reanimation as well.

However, a law that treats a vampire as having never died becomes problematic for non-probated assets. For instance, life insurance policies should obviously pay out to the beneficiary when a person has been killed and reanimated as a vampire. Treating a vampire as never-dead would result in policies that would not pay out when the human life expired. Similarly, vampire homicide would be eviscerated. A vampire who killed and turned a human would escape prosecution due to the legal fiction that their victim had never died.

The Dead Rise Again

The law should track reality, and that reality is that vampires are people who have died, and subsequently come back. At the moment of their actual death, the human who died is divested of all property interests. Those interests transfer to the estate. The estate then proceeds with probate.

A prudent practitioner will discuss drafting appropriate language concerning property. The best practice language would likely be along the lines of, “To my vampire, if any, I leave. . . .” This language should be the first bequest or grant of the will, to insure primacy if there is a dispute over terms. “If any” is important to insure that in the event that no vampire is created, there is no failed gift.

This is a simple and obvious step that all practitioners should take. Failure to account for possible reanimation may lead not only to a hotly contested will, but to serious malpractice claims. Should a client not wish to include language relating to possible undeath, a practitioner should absolutely create a memorializing document to that effect, preferably signed by the client. Only a stake or sunlight has been proven to kill vampires, but proper documentation can kill any law suit brought by the undead.

A related issue for consideration is the individual who for religious or moral reasons feverently does not wish to become a vampire. It has been reported that at least one cautious client has drafted instructions that his corpse should be staked through the heart to insure against reanimation. Sadly, the client specified a steel stake, as opposed to wood. This error may have haunted his attorney, but the client did not in fact reanimate. There appears no current impediment to the request of a human that he be prevented from reanimating. However, any instruction that a resulting reanimated vampire be killed is contrary to public policy and void. Such requests by clients should again be memorialized for the protection of the practitioner.

One potential point of objection to this system of recognizing actual death prior to reanimation as a vampire would be the payment of life insurance policies based on a person who voluntarily becomes a vampire. This ghoulish problem has been presented in vampyric scholarship since Stoker’s day. The obvious solution is to treat intentional vampirization as suicide for the purposes of life insurance policies. Intentional vampirization raises a host of unrelated issues not discussed in this article, including mental health commitments, the legality of suicide, and whether a vampire may be held liable for his human decision to die. In most jurisdictions vampires are liable for crimes and torts committed while human. Contract law has yet to reach a definitive consensus on whether unintended vampirization constitutes an excuse of performance.

Admittedly, tenancy in the entirety and joint tenancy with right of survivorship are problematic when dealing with vampires. A prudent practitioner would advise living clients to determine whether they ought to hold title as tenants in common such that they could direct the apportionment of their interest.

Zombie Rights? No, Sir!

A common argument raised against vampire rights is that it leads to a slippery slope to the legalization of zombies. This is absurd. Zombies are not people. Zombies have been shown repeatedly to have no continuity of personhood. The shambling corpse of your mother is not your mother. She does not think of you as her daughter, it thinks of you as dinner. This is categorically different from a vampire who retains the same sense of self that person had prior to their initial demise and subsequent reanimation.

With no personality, and no continuity of personhood, there is no legal, equitable, or moral reason to accord property rights to zombies. Further, property rights vested in zombies would strongly implicate dead hand control. While a vampire who has received property may decide to alienate the property in some manner, a zombie never will. To allow property rights to vest in zombies would incentivize proponents of the ancient fee tail to vest rights in their own zombie, set covenants, leases and use restrictions for the benefits of third parties, and then ensure zombification on death. Centuries would pass with the zombie legally “owning” the land and some covenant restricting use to a line of heirs apparent who may die out. This is an unconscionable restraint on alienation.

Vampires, however, are active participants in the market place. Therefore, a vampire who retains his or her property will be able to dispose of it as they so choose. Volition is possible the single biggest factor for differentiating between zombies and vampires. Volition and alienability militate heavily in favor of recognizing the right of vampires to hold property directly. Attempts to impair this right would only lead to trusts created for the benefit of vampires.

Other Considerations

A practitioner must be careful if crafting a future interest involving a vampire.

“Blackacre to O so long as Blackacre remains a house.” If Blackacre becomes a barn, then it should revert to O. However, if O has become a vampire O will not receive Blackacre. O has died, his reversion interests have passed on according to his will or intestacy laws. To date, no state has enacted an intestacy law that places a person’s vampire as the first heir. No state has enacted a law that grants automatic transfer of rights or interests to a vampire.

“Blackacre to O so long as Blackacre remains a house, if it does not so remain then to O’s vampire if any.” The Rule Against Perpetuities only applies to interests vested in third parties, and not the grantor. Should a vampire be considered the grantor, or is the vampire a third party? Does the vampiric self count as a “life in being”?

These cutting edge questions have not yet been definitively answered. A prudent attorney should discuss these issues with clients and discuss alternatives such as trusts. These discussions should certainly be memorialized so that if the law moves in a direction not anticipated by the practitioner, there is some security.

Ethical considerations must come into play as well. Many believe that vampires are evil. Even some attorneys truly believe that vampires are anathema. Currently no civil rights acts protect vampire rights from discrimination. However, the Model Code of Professional Conduct can certainly be construed to prohibit attorney discrimination against vampires. An attorney’s religious beliefs must not impair the attorney from providing accurate comprehensive legal advice. Should an attorney find themselves unable to competently represent individuals in matters involving vampirism, that attorney should consider an alternative practice area. At the very least, the attorney must disclose their opposition to vampires and be willing to refer the client out to a vampire-friendly practitioner or bar referral service. Attorneys must closely track the rights of vampires and judicial opinions concerning attorney conduct regarding the undead.


The modern estate planning attorney must consider a wide array of factors when dealing with a client’s post-life planning. By insuring the protection of a client’s possible post-human existence, an attorney can satisfy the mandate to competently represent their client.

Steven M. Silva, BA in Community Studies, magna cum laude, from University of Massachusetts, Boston. J.D. cum laude from California Western School of Law. Licensed in California. Specializes in property issues, including real property and estate planning. Currently serving as the law clerk for the Honorable Patrick Flanagan at the Second Judicial District Court for the State of Nevada, Washoe County. Steven is married to a woman of Transylvanian descent and supports equal rights for all sentient being regardless of living status. You can contact him at stevensilva at me dot com (replace 'at' and 'dot' with appropriate symbols).

The above article and bio were published with permission of the author, Steven M. Silva.  Mr. Silva retains all rights to his work.