A DISCUSSION OF LAW AND JOURNALISM

Condolences — and Congratulations!

Posthumous Marriage

By Halina Schiffman-Shilo

A few weeks ago my friend sent me his daily “I’m bored at work” email, which had a link to this interesting tidbit of news, courtesy of the Huffington Post: In Thailand, a young man and woman met in college, and then dated for ten years. Sounds normal so far but here’s where things gets interesting. After the woman was killed in a freak car accident, her boyfriend decided to make good on a promise to marry her. So in a joint wedding-funeral service, he did.

This raises an interesting legal question — is posthumous marriage legal in the U.S.? And, come to think of it, I’ve read about posthumous baptisms too.  What does the law say about that?  HuffPo and other news sources reported the story but didn’t delve into these rather macabre legal issues.  LASIS will.  

Filed under the category of random things I didn’t know until now: There are a few countries around the world where posthumous marriage is indeed legal. And even one country where there is a thriving black market trade in dead people for the sole purpose of marriage.

Posthumous marriage became formally legal in France in 1959 after the Malpasset Dam collapsed and flooded the small town of Fréjus near the Cote d’Azur in the south of France, killing over 400 people. In response to the pleading of a local woman who lost her fiancé, President Charles de Gaulle codified posthumous marriage to allow the stricken woman to marry her fiancé. This practice continues today under Article 171 of the French Civil Code. Though the surviving partner cannot acquire any rights to her dead beau’s assets (property law is a skeptic of love), she can take his last name. And strangely, but legally, she’d be married. This was not an isolated incident; from time to time a news story surfaces of an aggrieved petite amie asking the president to grant her permission to marry her one true, yet unfortunately deceased, love.

Posthumous marriage takes on a dark twist in China’s rural areas. According to these news stories, there is a ritual whereby a deceased bachelor is “married” to a deceased single woman so he will not be alone in the afterlife. The need for dead female bodies for these rituals spawned a lucrative black market for them. So lucrative, in fact, that in some cases, single women have been murdered and their bodies sold to the families of dead bachelors. Though officially illegal, the practice continues.

In the U.S., the issue is pretty straightforward: you can’t do it. Posthumous marriage, while not on the federal books as illegal, is not practiced here. (Let’s reflect for a moment: In the U.S., there are no federal laws on the books saying that you can’t marry a dead person, but there are laws saying you can’t marry a living person who happens to be the same sex as you. Just making sure I have that right.).

Our marital laws are generally made at the state level, and many states’ marital laws, such as those in  Alaska, California, Ohio, and Washington, include a clause saying that both parties must consent to marriage or else the marriage is void. The logic works like this:

Major Premise: Marriage can only be affirmed if both parties consent to marriage at time of marriage.

Minor Premise: A dead person cannot consent to marriage (or anything) because that person is dead.

Conclusion: A dead person cannot be married.

That’s not to say that some Americans haven’t tried.  In 1988, a Florida Court of Appeals reviewed a case in which a woman named Cecilia Kleiman was granted a marriage license to marry her recently deceased partner, Isaac Woginiak. Mr. Woginiak’s sons sued, alleging that they had not received proper notice of the marriage. (Ms. Kleiman openly admitted that she married the dearly departed Mr. Woginiak for financial reasons, which probably didn’t endear her to the Woginiak boys.) Ultimately, the appellate court overturned a lower court’s decision to issue the marriage license.

Even if you can’t marry a dead person, that doesn’t mean that the only thing you can do with a dead body is hold a funeral. No, you can baptize them, just as the Mormon Church has been doing to dead people for years. The dead person doesn’t even have to have granted prior consent for the baptism before she died.

This issue came up a few years ago when President Obama’s mother was inadvertently posthumously baptized into the Mormon faith, and more recently when Gawker (caveat emptor!) reported that Mitt Romney’s family posthumously baptized his atheist father-in-law to Mormonism. The Mormon Church maintains that its members only posthumously baptize the relatives of Mormons.  Still, there is no evidence that some of these relatives wanted to be Mormon while they were alive, let alone once they were dead.  In the case of President Obama’s mother, the Church has stated that it made a mistake. And maybe it did. But the Mormon Church has a known history of proxy baptism of Holocaust victims, much to the chagrin of the Jewish community, who regularly found the names of Jewish relatives on the lists of dead people submitted for proxy baptism in the Mormon Church. For now, the two sides have settled their disagreement amicably, with the Mormon Church agreeing to scrub its database of the names of Holocaust victims – who were never Mormon during their lifetimes.

As for the law on posthumous baptisms?  The law is silent on the subject.  Our bet is that this is because, practically speaking –and unlike marriage which involves a host of other legal issues — there is no financial gain to be had, and no disgruntled heirs to contend with, if a living person baptizes a dead one.

UPDATE, February 14, 2012: Despite promises to stop posthumously baptizing Holocaust victims, the Mormon tradition continues.  This time it was Nazi hunter Simon Wiesenthal’s parents, Holocaust victims who were baptized just last month.

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One Response

  1. Alex says:

    LOVED THIS!

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