The Story The Issues The Litigation Related More Info Forums Blog Contact Dockets
The Story The Issues The Litigation Related More Info Forums Blog Contact Dockets

Web Site Under Construction

Dead Hand Doctrine

The doctrine that a person can control his or her wealth even after death is known as "dead hand doctrine".   American law favors this doctrine.

“Our goods, if we are so fortunate to have any, are not interred with our bones, but are left behind for others to enjoy. But we like to determine who shall enjoy them and how they shall be enjoyed. Shall we not do as we wish with our own?” (Austin W. Scott, Control of Property by the Dead. I., 65 U. PA. L. REV. 527, 527 (1917).

It may be "our own" while still alive - but what about after death?  Dead hand doctrine is incompatible with with Jewish Law and with American values regarding property ownership.  Under Jewish Law there is no more ownership or control of property after death.

". . . in the sphere of the Law of Inheritance, although it . .  . is concerned with monetary matters, the rule stands that no-one may make a condition contrary to what is decreed in the Torah.  The reason for this is to be found in the following concept of private property underlying the religious philosophy of the Torah: In his lifetime a man may freely dispose of his property and he is therefore entitled, as far as Torah law . . . is concerned, to make a gift to anyone he pleases.  It is different after his death.  Then, he is no longer the master of his property and the law of the Torah takes over, and it is the Biblical Law of Inheritance which decrees what is to become of the property of the deceased person. These Laws of Inheritance cannot be  altered by testamentary disposition, and any provision made in a testament which contradicts the Torah's Laws of Inheritance . . . is invalid. . . . Man's free disposal over his property is limited by his span of life.  Human ownership ceases with the mystery of death which ends man's dual nature of spirit tied to matter." (Dayan I. Grunfeld, The Jewish Law of Inheritance: Problems & Solutions in Making a Jewish Will (Targum Pr., 1987) at p. 6).

Although there may be similarities between Jewish Law and American law (e.g., bankruptcy) the law of inheritance is certainly not one of them.  Under American law the right of people to control their wealth after death is alive and well.  In regard to a trust, a settlor's intention is always paramount to the wishes of a beneficiary and, unless his purpose is contrary to law or public policy, the courts will give it effect. Campbell v. Jordan, 274 N.C. 233, 243 (1968).

See Alexander, Gregory S., "The Dead Hand and the Law of Trusts in the Nineteenth Century" (1985). Cornell Law Faculty Publications. Paper 257.