Death and Taxes and Zombies

Today we are excited to bring you a guest post from Professor Adam Chodorow of the Arizona State University’s Sandra Day O’Connor College of Law.  This post is excerpted from Professor Chodorow’s forthcoming article in the Iowa Law Review entitled Death and Taxes and Zombies.  You can view the full version of the article free online.  Thanks to Chris for tipping us off to the law review article and thanks to Professor Chodorow for preparing this excerpt.

The U.S. stands on the brink of financial disaster, and Congress has done nothing but bicker.  Of course, I refer to the coming day when the undead walk the earth, feasting on the living.  A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead.  The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively.  The time to prepare is now, before panic sets in, and it is too late.  This post begins this critical task by considering whether someone who becomes a zombie should be considered dead for estate tax purposes.

I. A Zombie Taxonomy

Because the tax consequences of a zombie apocalypse may depend on the type of zombie encountered, I begin with a brief taxonomy of zombies.  While the word “zombie” originates in Haitian voodoo, the term has been applied to a variety of creatures over the years, such that there is now no generally accepted definition.  Congress has not seen fit to include a definition in the tax code, and, indeed, has not deigned to use the term.  Thus, developing a tight definition is not strictly necessary.

What follows are some of the key distinctions that may—or may not—have legal significance.  Some zombies are controlled by others (traditional Haitian zombies and the armies of Inferi raised by Lord Voldemort), while others are self-motivating (the zombies from George Romero’s ground-breaking documentary, Night of the Living Dead; the hit reality television program, The Walking Dead; and the classic work of putative fiction, Pride and Prejudice and Zombies).

Within the category of self-motivated zombies, distinctions may be made based on volition, abilities, and personality.  Some zombies slowly stumble along in search of brains upon which to feed, exhibiting little personality or ability to think (Night of the Living Dead).  Others move quickly, organize, and learn (Dawn of the Dead).  Still others retain some of the memories or personalities of the original person (American Zombie and Pet Sematary).

Another way to distinguish among zombies is the method by which people become zombies.  Controlled zombies are typically created through some form of dark magic.  Zombies can also be created by viruses (either naturally occurring (Zombieland and Zone One) or man-made (28 Days Later and I am Legend)), radiation (Night of the Living Dead), biochemical agents (Planet Terror), and even a mysterious meteor (The Zombies of Lake Woebegotton).  In some cases, one must be infected by a zombie to become a zombie (World War Z); in others, no prior zombie contact is necessary (Lake Woebegotton).  In some cases it is unclear how zombies are created.  Take, for example, Michael Jackson’s classic thriller, Thriller.  We simply don’t know what caused the first person to go zombie, and unless Michael comes back, we likely never will.

Finally, some people must die before becoming zombies, while others appear to make a seamless transition from living to undead.  There is often a connection between cause and the type of zombie created.  For instance, zombies arising from viruses often retain some vestige of their former personalities.  Controlled zombies are typically dead and retain none of the original person’s personality or memories.  Zombies of those who don’t die first are typically fast, while those whose progenitors died are typically slow.  However, it is possible to find zombies in each category that do not fit the typical pattern.  The Venn diagram is so confusing that I have opted to omit it in the interests of clarity.  This chart from Yahoo! Movies gives some sense of the complexity involved.

II. The Dead, the Undead, and the Death Tax

The most pressing tax issue raised by a zombie apocalypse is the application of the so-called “death tax,” which imposes a tax on the transfer of the estate of a “decedent.”  Zombies have been described variously as the “walking dead,” the “undead,” and the “living dead,” raising the question whether the estate tax should apply when a taxpayer becomes a zombie or, in the alternative, after a person’s zombie has been dispatched.

The definition of death, and therefore of a decedent, has generally been left to the states, each of which has its own definition.  That said, there has been a recent trend away from a definition that focuses on heart function to one that focuses on brain function.  Whether people who become zombies would be considered dead for state law purposes depends both on the definition used and the type of zombie involved.

It seems a stretch to conclude that those who transform seamlessly into zombies should be considered dead.  They never lose heart or brain function, though they now function quite differently from before.  While it might be tempting to declare them dead, significant line-drawing problems would arise as one tried to distinguish between zombies and those who have suffered some mental or physical breakdown.  Declaring such zombies dead would open the door to declaring dead a wide range of people currently considered to be alive.

The more interesting question is whether someone who has clearly died under state law and then been reanimated as a zombie should be considered dead.  For those whose dead bodies are simply under the control of a sorcerer, it would seem that the answer is yes.  A corpse magically manipulated by another is nothing more than a puppet with no heart or brain function and should qualify as dead under state law.

In contrast, most self-motivated zombies likely would be considered alive under most state law definitions.  They must have a biological mechanism by which they think and move, which typically requires brain function and some means of keeping the body nourished.  Indeed, in The Walking Dead, tests reveal that the brain function ceases and then restarts sometime later, though at a far lower level than before.  The normal way to dispatch a zombie is by destroying the brain, strongly suggesting that they would pass most brain-function definitions of death.

However, the question isn’t whether zombies can be considered alive, but rather whether, if someone’s zombie is alive, the original person can still be considered dead.  This hints at the far larger questions of how the law should treat resurrection generally and whether different types of resurrection should be treated differently.  For instance, some, like Lazarus, return intact.  Others may return as flesh-eating monsters.  Shockingly, the tax code is silent on this issue, a silence that is even more surprising when one considers that most of our legislators purport to be devout Christians, for whom resurrection is a core belief.

Those who come back fully intact would seem to be still alive, much as people legally presumed dead are still alive when they turn up years later (See, e.g., Castaway).  Those who return in altered state present a more difficult question.  A flesh-eating automaton is just not the same person the Nobel laureate he used to be.  In some real sense, the laureate has died, even if his body and some part of his brain live on.  Thus, it seems possible that the law could deem the zombie alive, without necessarily affecting the status of the original as dead.

Of course, the question we are trying to answer is not whether a person who becomes a zombie should be considered dead under state law.  Our goal is to determine whether such a person should be considered a decedent for federal estate tax purposes.  Tax law typically piggybacks on top of state law, meaning that someone considered dead for state law purposes would normally be considered dead for federal tax purposes as well.  However, federal tax law deviates from state law in a number of situations, including the question of what constitutes a devise, bequest or inheritance.  Thus, it is not unreasonable to think that a person could be dead under state law, but not a decedent for federal tax purposes.  Conversely, someone alive under state law definitions could be deemed dead for federal tax purposes.

The key justification for allowing federal tax law to deviate from state law is uniformity.  It would be unseemly if tax law deviated from state to state because of differences in state law.  Administrability is also a chief concern.  Imagine trying to determine whether people are dead under 50 different state laws while in the middle of a zombie apocalypse.  These concerns strongly suggest the need for a uniform federal standard, detached from the myriad state laws.  However, they do not suggest what the standard should be.  As with the state laws defining death, federal tax laws are surprisingly silent on the legal consequences of becoming a zombie, creating a dire need for clear guidance.

III. Conclusion

The application of the death tax to zombies only scratches the surface of the legal issues the undead present.  For instance, it is necessary to determine whether one remains married under state law to someone who becomes a zombie, and, if so, whether the Defense of Marriage Act, bars Federal recognition of said marriage.  And, then there are vampires.  But such issues must await another day, assuming it is not already too late.

37 Responses to Death and Taxes and Zombies

  1. While I agree that it’s appropriate to settle on some definitions of death for the inevitable zombie uprising, is it truly an emergency? I’m trying to think of a single depiction of a coherent federal response to a zombie breakout, and I’m drawing a blank. Government collapses quickly, and funding really doesn’t seem to be an issue following a zombie apocalypse.

    • It’s not set in the US, but in Shaun of the Dead things get back to more-or-less normal after a fairly short outbreak. And the resolution in that case definitely raises the issues identified in the post, since the zombies are used as cheap labor and entertainment rather than being cured or destroyed.

    • TimothyAWiseman

      Numerous projects include a coherent and even generally organized *initial* response to a zombie outbreak. It generally fails horribly, of course.

      Day of the Dead includes an initial attempt at containment by the military. Various parts of the Resident Evil video game franchise include fairly coherent responses from government groups like STARS. In 28 Days Later the British Government collapses fairly quickly, but it is shown in 28 weeks later that the other governments, including the US government, succeeded in (initially) contianing the infection to Britain and there is a coordinated attempt to repopulate Britain later.

      They never seem to last long, but an initial coordinated response has been shown a couple of times.

    • Melanie Koleini

      While the article seems mostly concerned with ‘zombie outbreaks,’ there are worlds where zombies exist in the human world without causing mass hysteria and mayhem. It all depends on the nature of zombies. Non-infectious zombies (usually controlled by magical practitioners) are often present in vampire stories (Anita Blake).

      In Anita’s world, US federal law considers vampires legally alive but zombies legally dead. However, zombies can testify and give evidence in civil and criminal trials. Under some circumstances, a zombie can even make a will (for the person they use to be).

      I don’t know what the definition of a living person is based on the law in Anita’s US. The US Supreme Court ruled vampires alive and it’s unclear if congress has actually changed the definition of death or of personhood.

      Most of the Anita Blake books are set in St. Louis so I don’t know if the state or federal government handles most zombie legal issues.

    • Considering the usual rate of infection we tend to see in zombie films I think it actually might be less of a threat than writers tend to suggest. Certainly thousands of people would probably die but the lack of tactics, coherent command and the fact that even a zombie would need knee caps and muscles to move makes me think that zombies in any decent state* would only cause enough damage to justify a strong response and not enough to lead to state collapse. Of course in nations like Somalia or Afghanistan all bets are off.

      *State as in nation-state in this case.

      • Adam Chodorow

        There is an academic article cited in the full paper modeling a zombie pandemic that suggests it will be quite rapid.

      • I’m still not convinced by that. In general zombies seem to get incredibly lucky considering how poorly organized they are. Depending on where the outbreak occurs they might barely kill a few hundred before wiping out the remaining population in the area and milling around for the next week before the military closes off the town and cuts them to pieces. Of course directed zombie infestations are another matter and a zombie infestation in a weak state like Haiti could be expected to result in far more casualties than in Singapore.

      • TimothyAWiseman

        “In general zombies seem to get incredibly lucky considering how poorly organized they are. ”

        It depends on the type of zombie you are talking about and how they arise. Classic slow-zombies that arise from a single point probably could not cause too much of a problem. They woud cause some disruption certainly, but after a little bit society would adapt and the zombinee infection would be something akin to ultra-rabies. A concern, but not one that cripples society.

        On the other hand, fast moving zombies, which are much more common in the modern genre are far more dangerous and harder to contain. Fast moving zombies could easily infect a large number and have an exponential growth rate until society had a coordinated response. If the zombie outbreak came as a surprise and so there was no coordinated response pre-planned it might take a while to figure out what was going on and make those coordinations. Fast moving zombies that arose unexpected would likely wipe out at least the city they arose in and would be a major threat to the world if not carefully contained.

        The threat of fast moving zombies goes up substantially if the arise in several places at once (or at least in short order), since that would make containment or eradication harder. It would also go up if you could have people be infectious-carriers for a while before they fully zombified. This was a major issue in 28 weeks later. An infectious carrier could spread the disease widely without being readily identifiable, which would again complicate containment or eradication.

        And finally, something like the original Night of the Living Dead where anyone who died from any source became a zombie, would likely destroy society even with a coordinated response because they would continue rising even if you killed every existing zombie. If society survived something like that at all, it would be in a highly altered form with great concern about dead bodies.

        http://www.mathstat.uottawa.ca/~rsmith/Zombies.pdf takes a great mathematical look at the situation.

  2. The ultimate response of the federal government is “World War Z” was coherent, although its initial efforts at a response were not great.

    • Jim, that was the only one that came to mind for me, and I’d argue that it wasn’t truly coherent. My take was that government eventually re-formed, and there wasn’t a lot of continuity between the existing government and the one that came into existence. I don’t think any degree of federal funding or tax collection was preserved.

      • That said, as I write these posts, it occurs to me that establishing a sound tax base in the event of a zombie outbreak would probably help the government to effectively respond, so addressing these issues makes sense. I withdraw my initial objection.

  3. The argument has been made that vampires are dead. I’d think that just like you can say zombies have brain function, so do vampires (chopping off the head of a vampire kills it in most versions). Just because you can’t measure it doesn’t mean it’s not functioning in some unnatural and undetectable manner.

    On the other hand, the existence of certain types of vampires pretty much implies that there’s something to life other than brain and heart function. Buffyverse vampires are animated by a demon soul. The vampire has the same brain and keeps the memories of the original, and so (if you go by brain function and don’t just assume the vampire is dead) they would have to be considered the original. Nobody ever actually did this in the series, but in theory, the original human soul could become a ghost, possess another body, you could communicate with it, etc. Would we really still define death as brain death under these circumstances?

    There was also the Buffy episode “The Zippo” where everyone else was off saving the world and Xander ran into some zombified people who could still walk and talk. It’s possible that this could raise the same issues as with soulless vampires–if they can walk and talk even though their essence is elsewhere, do we need to rethink defining life as depending on brain function?

    • Adam Chodorow

      I actually address vampires in the full article, which I would encourage you to download. The fact that some vampires reproduce complicates the picture as well because reproduction is sometimes, but not always associated with life (see, e.g., prions and mules). It highlights the difficulties in current definitions of death, and therefore life. Something broader then just brain and heart function may be appropriate.

      • Out of curiosity have you heard of Drezner’s book on political science and zombies?

      • Adam Chodorow

        Yes. I cite it in the full article, which runs about 24 pages. I had to cut out a lot to get to 1500 words.

  4. “It seems a stretch to conclude that those who transform seamlessly into zombies should be considered dead… Declaring such zombies dead would open the door to declaring dead a wide range of people currently considered to be alive.”

    How would this apply to murder charges? Obviously killing a person who has suffered mental damage would be murder. If the zombie never officially died, but instead just had a radical change in behavior, then blowing its head off could be considered murder under the assumptions in the above paragraph. If the zombie were actively trying to eat you it would be a clear case of self-defense, but if you were locked in a house with a horde of zombies slowly approaching would you have to wait until they start to break in before you could legally kill them?

    To make things even murkier, what if the zombie was just randomly wandering around the streets? Sure they would eventually attack someone, but the law frowns on “preemptive defense of others” – killing a “living” zombie to protect other victims in the future would seem no more legal than killing an abortion doctor (not to open a debate on abortion, but given as an example because the defendant’s justification is usually some form of “they were going to kill people in the near future, so I had to stop them before it happened” – which would be the same justification for killing a zombie that wasn’t actively attacking someone yet).

    • Let’s extend that. Is it okay to kill a Dalek that’s just wandering around? Daleks (from Doctor Who) are a race that wanders around in little tanks and is genetically engineered to lack any sense of morality. They don’t actually eat people, but you can be pretty much assured that the Dalek will kill someone next time a person is in the way of conquest–not very far from the idea that the zombie will eventually kill someone.

    • Martin Phipps

      The answer is, yes, it would be murder. The best defense I can see is to say that humans and zombies are “at war” and the zombies are “enemy combatants” if not soldiers in the zombie army. This relates to Ken’s comment about Daleks. Killing a zombie is therefore killing in defense of the human race.

      Alternatively, you could argue that the zombie, while alive, is no longer human. While it may be morally wrong to kill a dog I don’t believe if it is legally wrong as long as it is done humanely. Certainly dogs can be euthanized. Killing a zombie, therefore, would be like killing a rabid dog.

      The latter justification does not apply, however, if zombies come about as a result of a disease and there is the possibility of a cure that causes the victim to regain some of the mental capacity he or she once had.

  5. crypticmirror

    “Take, for example, Michael Jackson’s classic thriller, Thriller. We simply don’t know what caused the first person to go zombie, and unless Michael comes back, we likely never will”.

    Don’t you mean “until Michael comes back”?

    It all sounds like the sort of thing we need a working group to study, somebody call for Reg Shoe :o)

  6. Kristian Lund

    Some economic ramifications of the zombie apocalypse, by Michael Swanwick:
    http://www.tor.com/stories/2011/10/the-dead

  7. While an interesting legal debate I’m not sure that there would be such a great drop in tax revenue. Typically when political entities face an urban/agrarian consistent threat that uniformly threatens all of the dominant class/race/ethnicity the population will quickly demand that the state take stronger steps to handle the threat and the state in turn will have the ability to demand greater taxes from the population.
    Consider the example of South Africa from the 1950s until the 1980s where fears of Communism and black South Africans (as well as the Communist-friendly states of South Africa) led to a rather strong state despite disenfranchising the vast majority of the population.
    Presuming that the military could avoid state collapse I could see the state actually increasing tax revenue from a zombie infestation.

    • Adam Chodorow

      True, but if most of the population has been turned into zombies, the number of taxpayers may be so small that a tax of 100% may not be sufficient to cover the needed expenses. Thus, taxing those who become zombies may be necessary to raise sufficient revenues.

      • There is the threat of that, but zombie infection doesn’t seem to be very efficient. With enough firepower and a relatively functional government the threat of widespread extinction of the living would be unlikely. Of course if the zombie population were to show sufficient intelligence to actually possess money, spend it, earn it as well as the general definitions of a citizen I suppose it might be possible in the future for states to begin exploring zombie taxation (after the strong hatred of zombies for attacking the living population had faded).

  8. Reading the full version of the article, I don’t think the mummy in the 1932 movie is slow and lumbering. Like the first parts of many series, this movie is substantially different from the ones that come after it and as soon as the mummy awakens he sheds his wrappings and pretends to be a living person.

    As for vampires, I would suggest that a vampire who turns into a bat would still be considered a woman or a person for the purpose of applicable laws. Although the vampire’s present form resembles a bat, it can turn back, something which real bats can’t do. It would like requiring that a contract be with someone of sound mind. If they get drunk or sleep, thus ceasing to be of sound mind for a while, the contract isn’t broken. Besides, it’s a sentient bat, which may count as a person for the same reason that extraterrestrials might.

    Lastly, the full article doesn’t address the Buffy style vampire where there seems to be continuity and memory from the original to the vampire, but the vampire lost its human soul. Wouldn’t this mean having to throw out the concept of brain death, since the vampire retains a working brain but not the soul (especially if the soul can be separately spoken to as a ghost).

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  10. Oh, I can’t wait to read this article. One night I went a little crazy after writing so many cover letters and wrote one about how I’d be an asset to firms in the middle of the zombie apocalypse.

  11. Professor Chodorow missed an excellent source: Terry Pratchett’s Discworld. Zombies there are emphatically people, and the most usual reason they’re still around is either vital unfinished business or an obsessive/compulsive who won’t let dying keep them from vitally important work. The novel Reaper Man tells the story of Windle Poons, a 130-year-old wizard who was quite looking forward to reincarnation, but awakened to discover he was back (as it were) in his dead body. It turns out that the current Death was “surplus to requirements,” and all sorts of weirdness ensues.

    Discworld zombies are not only self-aware, but quite hard to kill. They’re very fast and incredibly strong. No shotguns, either.

    H. Beam Piper was mentioned in a previous post downstream, and one of the short stories in his “Paratime” series (“Last Enemy”) has some relation to this topic. In that alternate timeline, reincarnation is an established scientific fact. The only question is to what degree does a reincarnated person remember his/her previous life, or choose their next. There are even two major political parties. The Statisticalists believe reincarnation is random, hence they advocate economic & social “justice,” or redistribution wealth. The Volitionists believe reincarnation is deliberate, so they support free enterprise and private property.

    A scientist from Paratime First Level (home timeline for the series) poses as a local to perform research on reincarnation, and manages to prove that the choice is voluntary. Imagine what that would do to inheritance and tax laws. What if (say) George Soros reincarnates as his own son (call him George Jr.); is he still legally liable for outstanding debts or owed taxes, given scientifically proven that his personality/self is George Sr.? Does he pay inheritance taxes for inheriting money from himself? What if he leaves his money to a non-relative, but reincarnates as their son? To what degree is he still George Soros, and to what degree is he John Doe, son of James & Sally Doe? What may bear on the question is (IIRC) previous lives are normally only recalled between incarnations, although the First Level scientist above did develop procedures to consciously recall previous lives in the story.

    Here’s another: what if a rich woman (I’m tired of Soros {g}) commits suicide and reincarnates as her own niece. It later becomes established who the niece was. Can she be charged with some sort of killing? If money from an insurance policy devolves to the niece, is she entitled?

    • Adam Chodorow

      Great point about reincarnation. Tibetans also have to deal with reincarnation. I don’t know how they address the question of what rights the newly reincarnated version of a lama has to the property of the prior lama, but such rules could serve as model for us. There is a brief discussion of this in the most recent draft.

      I actually do have a reference to Discworld in the footnotes. The problem is an abundance of riches with which to work. I simply can’t get them all in and discussed within the space available.

  12. Bits and pieces: It seems to me that the law must not merely rule on the status of a reanimated corpse, but also what percentage of that corpse meets that threshold. For example…

    I live in California and every so often some one drives a hearse in the carpool lane and tries to argue the fellow in the coffin is a passenger instead of cargo. Under the rules outlined above, one could argue a zombie counts as a passenger for these purposes. However, *how much* of a zombie? Let us suppose that we are dealing with the style of undead from the “Evil Dead” movies, where a severed limb can continue to move, attack, or engage in independent “Three Stooges” style conduct. Could I get a zombie, chop it into pieces that are still animated and then sell off the pieces as carpool passes? For that matter, would I be facing a kidnapping/slavery charge for selling those pieces? Does desecration of a corpse become an obsolete offense, replaced by mayhem/assault/whatever on the undead?

    Not only would this issue need to be resolved in the event of mayhem on the undead, but also when bits and pieces of the poor fellow fall off in the course of normal wear and tear. Presumably, the main bulk of the corpse loses its undead status when it becomes completely inert, but what about the pieces shed along the way?

    On another topic, I wish to propose the term “redead” as for the terminology to describe a member of the undead that has been finally dispatched to its final rest.

    • If the zombie parts remain active, yet the main bulk can go inert when something is destroyed, then consider: the main bulk is just a series of connected parts. How come one part remains active and other parts go inert?

      The logical conclusion is that all the parts go inert at the same time. If connected parts go inert, then disconnected ones should too. In which case it’s just one zombie over a widespread area.

      It would be a similar question to “if Madrox the Multiple Man split into two, and one of him was a passenger the carpool lane, is that legal?” You could argue that the one in the carpool lane is part of a single entity so the car doesn’t have two whole people in it. For that matter, if he were to split in two and both were to get into a car, could he legally use the carpool lane since there’s “more than one person” in the car?

      • I like your test: If the parts remain animated together, they are all part of a whole. Since mere physical separation is no longer sufficient to impose a state of permanent death, it should not be distinguished from other phenomena that no longer cause that condition (i.e. a speargun through the chest that fails to slow down a zombie).

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  15. Howard Gilbert

    What about the Rapture? A Zombie Apocalypse is speculation, but for lots of believers there is the certain real Apocalypse coming where the faithful will be whisked away to Heaven. They may not have died, but they are not coming back. Meanwhile, for us sinners who did not make the trip, what do we do with all the stuff they left behind? Can it go to Probate? Fortunately, we can be sure that we will lose none of our elected officials in Washington. They will all be still with us to make the laws necessary to deal with the situation.

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