Despite its name, the law of the dead has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes – such as those relating to the treatment of the corpse – being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, the deceased as a person is conceived in terms of extra-legal tragedy, and is denied legal existence in the form of rights, interests, or duties in the posthumous space. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by suggesting that the interests of the still-living expand in equivalence to those (now-terminated) interests held by the deceased at the moment of her death. More precisely, this paper argues that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own legally-recognised interests equivalent to those interests held by the deceased in relation to her (the deceased’s) body at the moment of her death.


Kate Falconer is a PhD Candidate at the Australian National University’s College of Law. Her doctoral research focuses on possessory rights and interests in the deceased human body and the implications of these interests for property theory. More broadly, her academic interests lie in the interactions of death with the private law, particularly the law of trusts and the law of tort. Kate holds an LLM in US Law from Washington University in St Louis as well as an LLB with Honours and an undergraduate degree in archaeology from the University of Queensland.

About Australian Centre for Private Law Events

The mission of the ​Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:

Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.

Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.

Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.

The ACPL embraces all branches of private law, including the law of contract, torts, trusts, equity, property, unjust enrichment, including theoretical and jurisprudential dimensions and contextual applications thereof.


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