If There’s A Will, There May Be Weed


I received an interesting call this week from yet another attorney who needed some advice. It seems that this attorney was handling a probate, and the person who died was an AMMA patient and left their estate a significant sum of medical marijuana. The lawyer was concerned about how best to dispose of it.

In situations like these, the jokes write themselves. Of course, I quipped back that she was welcome to bring the product to my office and I would show her how to slowly destroy it in a fire (I am a patient card holder, and I was only joking).  However, this is actually a real situation, she posed a terrific question, and there is a true answer.

The Dead Donor Dilemma

First, the lawyer was rightly concerned about possession and disposition of the marijuana. Remember, under Arizona law, only AMMA patient card holders may possess up to 2.5 ounces of medical marijuana. Also, patients may transfer medical marijuana between themselves.

Second, knowing that medical marijuana can be transferred patient-to-patient, you would think a logical solution would be to give it to another cardholder. However, if we are being technically correct under the law, the only way a patient can transfer their marijuana to another patient is by donation. In this instance, our donor is already dead and thus cannot consent to the transfer.

Third, if we are being strictly and technically correct, the only legal solution to this problem (yes, I know the rest of you have clever alternatives to propose) would be to contact the local police agency and request that the marijuana be picked up for destruction.  Yours may be the strangest call at the station that day, but the police will probably appreciate your honest and fastidious nature.

If You Are Already Dead, There Is Nothing We Can Do to Help You

So, how do we avoid this problem?   Well, if you are already dead, there is nothing we can do to help you.  But if you are very much alive, and you would like to direct your medical marijuana from beyond the grave, you can add a section to your estate documents requesting your medical marijuana be given to another patient cardholder upon your death.

Yes, I know that sounds weird, but what I am suggesting is a Weed Will.  [You make provisions for your pets, why then not for your plant products?]  Leave written and properly executed instruction behind expressing your donative intent, and make sure the recipient you name may lawfully take possession of your medical marijuana (while not exceeding their 2.5-ounce allotment).

If you do not know of any patients you would want to name in your will, you can of course always write in my name.

Gary Smith head shotGary Michael Smith is an attorney and arbitrator and partner in the Phoenix Arizona-based Smith Saks Kuzmich PLC.   He is also a founding director and current president of the Arizona Cannabis Bar Association.  He can be reached at smith@sskattorneys.com.

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