The Slayer Rule

During the COVID-19 pandemic, people were asked to quarantine for months together. Quarantine tested marriages and some people I spoke to jokingly stated they contemplated killing their spouse. Well, I hate to burst your bubble, but very state has a statute in place to prevent killers from inheriting from their victims. These statutes are more commonly referred to as “Slayer Statutes.” 

What is the rationale behind the establishment of “Slayer Statutes.” The rationale is that no one should profit from a wrongful act, Thus, a killer should not receive a benefit from slaying the decedent even if the killer’s actionw as not motivated by financial gain from the estate. See, e.g. Restatement (Third) of Restitution and Unjust Enrichment Section 45; Restatement (Third) of Property (Wills & Don. Transfers) Section 8.4. Generally, a slayer must forfeit all beenfits he/she might derive from the victim under a will, trust, intestacy, or non-probate instrument. See UPC Section 2-803(b). Additionally, the slayer loses any right of survivorship in joint tenancies held with the victim and cannot serve in a fiduciary capacity on behlaf of the victim. See UPC Section 2-803(c)(1)-(2).

The UPC and many jurisdictions define the term “slayer” as “felonious and intentional killing.” Therefore, the slayer rule does not apply if the heir or beneficiary is guilty of merely negligent homicide or involuntary manslaughter.  See Carla Spivack, Killers Shouldn’t inherit from THeir Victims-Or Should They?, 48 Ga. L. Rev. 145, 158 (2013).

The major complication is that the Probate/Surrogate Court does not issue a ruling until after the criminal case has concluded. Therefore, if the slayer is found “guilty” of feloniously and intentionally killing the decedent and has exhausted all appeals, the individual is conclusively a “slayer.” However, the converse is not true: a person who has been found “not guilty” in a criminal trial is not necessarily eligible to inherit and may still be barred by the Probate/Surrogate Court. Why does this happen? In a criminal trial, the burden of proof is “beyond a reasonable doubt;” however, in Probate/Surrogate Court the burden of proof is much lower and must be proven “by a preponderance of the evidence.” Therefore, the slayer can be acquitted in criminal court, but still be stripped of his/her inheritance rights. 

In addition to the slayer losing his/her inheritance rights, some jurisdictions will disinherit anyone else that would unduly profit from the crime. Some courts have extended the slayer rule to those “indirect beneficiaries,” holding that it would be unfair to allow the slayer’s actions to enrich his/her kin (at least where the slayer’s kin are not also the victim’s kin). See, e.g., Swain v. Estate of Tyre ex. rel. Reilly, 57 A.3d 283 (R.I. 2012); In re Esatte of Mueller, 65 N.E.2d 1040 (Ill. Ct. Appl. 1994). But see Diep v. Rivas, 745 A.2d 1098 (Md. 2000); In re Estate of Covert, 761 N.E.2d 751 (N.Y. 2001).