united-states wills estate-planning
Can I waive the &quot;slayer statute&quot; in my will?
<p>In most jurisdictions, a killer cannot profit from their crime, i.e. if someone kills someone else, they cannot inherit from them.</p>

<p>If I create a will, can I specifically ignore the slayer rule? Can I leave my assets to certain persons regardless of whether or not they caused my death?</p>

<p>Please include case law or statutes (if they exist). I am interested in answers for any jurisdiction within the United States, but answers in other jurisdictions are acceptable too.</p>

<p>No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. </p>

<p>But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer).</p>

<p>Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. <em>See Egelhoff v. Egelhoff</em>, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in <em>Kennedy v. Plan Administrator</em>, 555 U.S. 285 (2009) at footnote 14); <em>Wasserman v. Schwartz</em>, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). <em>But see, Herinckx v. Sanelle</em>, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes).</p>

<p>A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in <em>In re Estate of Castiglioni</em>, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case <em>In re Gleason</em>, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012).</p>

<p>Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. <em>In re Estate of Blodgett</em>, 147 P.3d 702 (Alaska 2006).<a href="https://ballotpedia.org/Colorado_End_of_Life_Options_Act,_Proposition_106_(2016)" rel="noreferrer">1</a></p>

<p>There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. <em>But see</em>, <a href="https://ballotpedia.org/Colorado_End_of_Life_Options_Act,_Proposition_106_(2016)" rel="noreferrer">Colorado Proposition 106</a> (adopted by voters November 8, 2016) as it pertains to insurance benefits.</p>

<p><strong>A Sample Statute</strong></p>

<p>The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows:</p>

<blockquote>
  <p>§ 15-11-803. Effect of homicide on intestate succession, wills,
  trusts, joint assets, life insurance, and beneficiary designations</p>
  
  <p>(1)   Definitions. As used in this section, unless the context otherwise
  requires: (a) "Disposition or appointment of property" includes a
  transfer of an item of property or any other benefit to a beneficiary
  designated in a governing instrument. (b) "Felonious killing", except
  as provided in subsection (7) of this section, is the killing of the
  decedent by an individual who, as a result thereof, is convicted of,
  pleads guilty to, or enters a plea of nolo contendere to the crime of
  murder in the first or second degree or manslaughter, as said crimes
  are defined in sections 18-3-102 to 18-3-104, C.R.S. (c)  "Governing
  instrument" means a governing instrument executed by the decedent.
  (d)   "Killer" is any individual who has committed a felonious killing.
  (e)   "Revocable", with respect to a disposition, appointment,
  provision, or nomination, means one under which the decedent, at the
  time of or immediately before death, was alone empowered, by law or
  under the governing instrument, to cancel the designation in favor of
  the killer, whether or not the decedent was then empowered to
  designate himself or herself in place of his or her killer and or the
  decedent then had capacity to exercise the power.</p>
  
  <p>(2)   Forfeiture of statutory benefits. An individual who feloniously
  kills the decedent forfeits all benefits with respect to the
  decedent's estate, including an intestate share, an elective-share, an
  omitted spouse's or child's share, the decedent's homestead exemption
  under section 38-41-204, C.R.S., exempt property, and a family
  allowance. If the decedent died intestate, the decedent's intestate
  estate passes as if the killer disclaimed his or her intestate share.</p>
  
  <p>(3)   Revocation of benefits under governing instruments. The felonious
  killing of the decedent: (a)  Revokes any revocable (i) disposition or
  appointment of property made by the decedent to the killer in a
  governing instrument, (ii) provision in a governing instrument
  conferring a general or nongeneral power of appointment on the killer,
  and (iii) nomination of the killer in a governing instrument,
  nominating or appointing the killer to serve in any fiduciary or
  representative capacity, including a personal representative,
  executor, trustee, or agent; and (b)  Severs the interests of the
  decedent and killer in property held by them at the time of the
  killing as joint tenants with the right of survivorship or as
  community property with the right of survivorship, transforming the
  interests of the decedent and killer into tenancies in common.</p>
  
  <p>(4)   Effect of severance. A severance under paragraph (b) of subsection
  (3) of this section does not affect any third-party interest in
  property acquired for value and in good faith reliance on an apparent
  title by survivorship in the killer unless a writing declaring the
  severance has been noted, registered, filed, or recorded in records
  appropriate to the kind and location of the property which are relied
  upon, in the ordinary course of transactions involving such property,
  as evidence of ownership.</p>
  
  <p>(5)   Effect of revocation. Provisions of a governing instrument are
  given effect as if the killer disclaimed all provisions revoked by
  this section or, in the case of a revoked nomination in a fiduciary or
  representative capacity, as if the killer predeceased the decedent.</p>
  
  <p>(6)   Wrongful acquisition of property. A wrongful acquisition of
  property or interest by a killer not covered by this section shall be
  treated in accordance with the principle that a killer cannot profit
  from his or her wrong.</p>
  
  <p>(7)   Felonious killing; how determined - time limitations on civil
  proceedings. (a)  Criminal proceedings. After all right to appeal has
  been waived or exhausted following the entry of a judgment of
  conviction establishing criminal accountability for the felonious
  killing of the decedent, such judgment conclusively establishes the
  convicted individual as the decedent's killer for purposes of this
  section. (b)  Civil proceedings. Notwithstanding the status or
  disposition of a criminal proceeding, a court of competent
  jurisdiction, upon the petition of an interested person, shall
  determine whether, by a preponderance of evidence standard, each of
  the elements of felonious killing of the decedent has been
  established. If such elements have been so established, such
  determination conclusively establishes that individual as the
  decedent's killer for purposes of this section. (c)   Time limitations
  on civil proceedings. (I) A petition brought under paragraph (b) of
  this subsection (7) may not be filed more than three years after the
  date of the decedent's death. (II)    Notwithstanding any provision of
  subparagraph (I) of this paragraph (c) to the contrary, if a criminal
  proceeding is commenced in a court of this state or in another
  jurisdiction against an individual for the felonious killing of the
  decedent, a petition brought under paragraph (b) of this subsection
  (7) may be filed so long as the petition is filed no later than one
  year after all right to appeal has been waived or exhausted following
  an entry of a judgment of conviction, or a dismissal, or an acquittal
  in the criminal proceeding. However, if the death and the possible
  culpability of the slayer for the felonious slaying of the decedent is
  not known to the petitioner within the three-year period of
  limitations established pursuant to subparagraph (I) of this paragraph
  (c), the accrual of the action under paragraph (b) of this subsection
  (7) and the possibility of the tolling of the running of the
  three-year period of limitation under subparagraph (I) of this
  paragraph (c) shall be determined according to the principles of
  accrual and tolling established by case law with respect to similar
  limitations established under section 13-80-108, C.R.S. (d)   Judgment
  of conviction. For the purposes of this subsection (7), a "judgment of
  conviction" includes a judgment of conviction on a plea of guilty or
  nolo contendere, or a judgment of conviction on a verdict of guilty by
  the court or by a jury.</p>
  
  <p>(8)   Protection of payors and other third parties. (a)   A payor or other
  third party is not liable for having made a payment or transferred an
  item of property or any other benefit to a beneficiary designated in a
  governing instrument affected by a felonious killing, or for having
  taken any other action in reliance on the beneficiary's apparent
  entitlement under the terms of the governing instrument, before the
  payor or other third party has received written notice as described in
  paragraph (b) of this subsection (8). A payor or other third party
  shall have no duty or obligation to make any determination as to
  whether or not the decedent was the victim of a felonious killing or
  to seek any evidence with respect to any such felonious killing even
  if the circumstances of the decedent's death are suspicious or
  questionable as to the beneficiary's participation in any such
  felonious killing. A payor or other third party is only liable for
  actions taken two or more business days after the payor or other third
  party has actual receipt of such written notice. Any form or service
  of notice other than that described in paragraph (b) of this
  subsection (8) shall not be sufficient to impose liability on a payor
  or other third party for actions taken pursuant to the governing
  instrument. (b)   The written notice shall indicate the name of the
  decedent, the name of the person asserting an interest, the nature of
  the payment or item of property or other benefit, and a statement that
  a claim of forfeiture or revocation is being made under this section.
  The written notice shall be mailed to the payor's or other third
  party's main office or home by registered or certified mail, return
  receipt requested, or served upon the payor or other third party in
  the same manner as a summons in a civil action. (c)   Upon receipt of
  the written notice described in paragraph (b) of this subsection (8),
  a payor or other third party may pay to the court any amount owed or
  transfer to or deposit with the court any item of property held by it.
  The availability of such actions under this section shall not prevent
  the payor or other third party from taking any other action authorized
  by law or the governing instrument. The court is the court having
  jurisdiction of the probate proceedings relating to the decedent's
  estate, or if no proceedings have been commenced, the court having
  jurisdiction of probate proceedings relating to decedents' estates
  located in the county of the decedent's residence. If no probate
  proceedings have been commenced, the payor or other third party shall
  file with the court a copy of the written notice received by the payor
  or other third party, with the payment of funds or transfer or deposit
  of property. The court shall not charge a filing fee to the payor or
  other third party for the payment to the court of amounts owed or
  transfer to or deposit with the court of any item of property, even if
  no probate proceedings have been commenced before such payment,
  transfer, or deposit. Payment of amounts to the court or transfer to
  or deposit with the court of any item of property pursuant to this
  section by the payor or other third party discharges the payor or
  other third party from all claims under the governing instrument or
  applicable law for the value of amounts paid to the court or items of
  property transferred to or deposited with the court. (d)  The court
  shall hold the funds or item of property and, upon its determination
  under this section, shall order disbursement in accordance with the
  determination. A filing fee, if any, shall be charged upon
  disbursement either to the recipient or against the funds or property
  on deposit with the court, in the discretion of the court. (e)    Upon
  petition to the court by the beneficiary designated in a governing
  instrument, the court may order that all or part of the property be
  paid to the beneficiary in an amount and subject to conditions
  consistent with this section.</p>
  
  <p>(9)   Protection of bona fide purchasers; personal liability of
  recipient. (a)    A person who purchases property for value and without
  notice, or who receives a payment or other item of property in partial
  or full satisfaction of a legally enforceable obligation, is neither
  obligated under this section to return the payment, item of property,
  or benefit nor is liable under this section for the amount of the
  payment or the value of the item of property or benefit. However, a
  person who, not for value, receives a payment, item of property, or
  any other benefit to which the person is not entitled under this
  section is obligated to return the payment, item of property, or
  benefit, or is personally liable for the amount of the payment or the
  value of the item of property or benefit, to the person who is
  entitled to it under this section. (b)    If this section or any part of
  this section is preempted by federal law with respect to a payment, an
  item of property, or any other benefit covered by this section, a
  person who, not for value, receives the payment, item of property, or
  any other benefit to which the person is not entitled under this
  section is obligated to return the payment, item of property, or
  benefit, or is personally liable for the amount of the payment or the
  value of the item of property or benefit, to the person who would have
  been entitled to it were this section or part of this section not
  preempted.</p>
</blockquote>

<p><a href="https://ballotpedia.org/Colorado_End_of_Life_Options_Act,_Proposition_106_(2016)" rel="noreferrer">1</a> The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above.</p>

<blockquote>
  <p>The District of Columbia slayer statute covers homicide resulting from
  grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d
  614, 615 (D.C.1985) (explaining that the slayer statute covers
  "unintentional killing derived from reckless or grossly negligent
  conduct").</p>
  
  <p>Louisiana's slayer statute covers all criminal homicide. In re
  Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer
  statute "was intended to include situations such as that presented by
  this case, where a beneficiary does not intentionally and feloniously
  cause the death of the insured but is nonetheless held criminally
  responsible for that death").</p>
  
  <p>North Carolina's common law slayer rule prohibits inheritance after
  any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C.
  47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App.
  312, 388 S.E.2d 199, 201 (1990). The continued application of this
  common law rule has been criticized in light of a slayer statute
  barring only intentional killers from inheriting. N.C. GEN. STAT. §
  31A-3; see also generally Julie Waller Hampton, The Need for a New
  Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002).</p>
  
  <p>Kentucky Revised Statute § 381.280 bars inheritance from those
  convicted of any felonious homicide. "Reckless homicide" is a felony.
  KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from
  the standard of conduct that a reasonable person would observe." KRS §
  501.020. Reckless homicide in Kentucky is therefore equivalent to 
  criminal negligence in Alaska under AS 11.81.900(a)(4).</p>
  
  <p>Kansas Statute § 59-513 states that "[n]o person convicted of
  feloniously killing, or procuring the killing of, another person shall
  inherit." Involuntary homicide under Kansas law extends to "killing of
  a human being" committed recklessly, during a misdemeanor, or "during
  the commission of a lawful act in an unlawful manner." KS ST§ 59-513.
  This arguably could extend to grossly negligent conduct, especially as
  KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,'
  'culpable negligence,' 'wanton negligence' and 'wantonness' are
  included within the term 'recklessness' as used in this code." A
  federal district court has held that Kansas's slayer statute does not
  apply to negligent homicide, and there appear to be no state cases
  interpreting the scope of the statute or applying it to negligent
  homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379,
  382–83 (D. Kan. 1959) (explaining that "the intent of the legislature
  in enacting the statute must have been to give effect to the
  common-law rule"). The Kansas slayer statute is essentially unchanged
  since Rosenberger.</p>
</blockquote>

<p>You can make a private arrangement (like a will) that conflicts with the law, however, such a will will be either unenforceable in that particular or totally void.</p>
