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.