IT’S NOT LIKE SHE WAS A BANK ACCOUNT OR SOMETHING

Where There's No Will (Clinton W. Taylor, The American Spectator, March 22nd, 2005)

For Terri Schiavo, it's all over but the starving. However, the repercussions of pulling Terri's feeding tube are just beginning. National Review Online's Andy McCarthy has explained that the abuse of Terri Schiavo's rights would scandalize the nation were the same things done to murderers or terrorists. Actually, it's worse than that. Not only do we treat our murderers with more care than we treat incapacitated patients like Terri Schiavo -- we dispose of our property with more care than we are disposing of her life.

Imagine a different set of facts in the Schiavo case. Let's say a woman named Terri owns (independently of her husband) a very nice sports car. Then one day she dies, suddenly, without a will.

If someone dies without a valid will, statutes called intestacy laws determine who is entitled to inherit the dead person's estate. Intestacy laws can get complicated -- but the law in Florida (as with most states) is that your surviving spouse inherits all your property.

Anyway, in this hypothetical, Terri's mother doesn't like that. In court she says that Terri told her once or twice, "Mom, if anything happens to me, I want you to have that car."

There is this very straightforward procedure to settling questions of property distribution when no written will exists: If there's no written will to debate, then the intestacy statutes control and that's that -- whatever Mom says Terri said is simply irrelevant to the operation of the law. The mother's statement is inadmissible. No will? Terri's husband gets the car.

If Terri doesn't like the way the intestacy statute will distribute her property, of course, all you need to do is draft a will that clarifies your wishes. There's either a will, or there isn't. And if there isn't a valid will spelling out Terri's true wishes, no one can derail this statutory procedure by testifying about what Terri said years ago.

Contrast that with the real facts of the Schiavo case. Witnesses offered conflicting statements about Ms. Schiavo's wishes, as she expressed them in the 1980s. Those statements were construed by Judge George Greer to be "clear and convincing evidence" that Terri would wish to be starved to death were she ever in the situation she is now in. If this were a property distribution under intestacy laws, the answer would be clear. The witnesses' statements would be ignored, and the statutory presumptions would control.

In other words, the kind of testimony Michael Schiavo gave would not be sufficient (or even admissible) to affect the disposition of Terri's property -- but it is sufficient to end her life.

Not just intestacy laws offer more protection for property than for Terri. As "mildly pro-right-to-die" blogger Ace of Spades noted, "You need a written contract for any lease of land that lasts more than one year; it seems very odd to me indeed that the taking of a human life requires only one hearsay statement from one interested party."

These priorities are skewed. If a dead person's property is accidentally distributed against his wishes...too bad, we tried, you should have written a will. But if an innocent, incapacitated person's life is ended against his wishes? A mistake like that would be horrific.

A wonderful answer to all those who are suddenly and conveniently discovering the sanctity of positive law.