by Matthew Skotak and Rebecca Klock Schroer
Common law provides that a killer cannot profit from his or her own wrong. This policy underlies what is known as the “Slayer Statute.” The Colorado Probate Code includes Colo. Rev. Stat. § 15-11-803 to address the scenario where a person kills another and stands to inherit the victim’s assets.
Under the Slayer Statute, there are two ways to show that a person cannot inherit. First, if the person is convicted of a felonious killing in a criminal proceeding, after all right to appeal has been exhausted, such conviction is conclusive under the Slayer Statute. Accordingly, the killer’s right to inherit from the victim is extinguished and the killer is generally treated as though he or she predeceased the victim.
Second, a civil action may be commenced under which the accusing party may try to prove, by the preponderance of the evidence, the elements of a felonious killing. If the elements are proven, the killer’s right to inherit from the victim is extinguished. The ability to move forward with a civil action may be particularly useful if the criminal proceeding is subject to multiple appeals and is pending for a number of years.
The Slayer Statute generally addresses the killer’s right to inherit under revocable instruments, nonprobate assets, e.g., life insurance, and statutory rights. It does not address every possible scenario and therefore, has a “catch-all” provision. This provision provides that “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.” Colo. Rev. Stat. § 15-11-803(6).
While the catch-all provision gives the court some latitude in applying the underlying policy, it is not all encompassing. The Slayer Statute does not affect assets to which the killer had a vested interest prior to the decedent’s death. If applied, the statute only takes away benefits provided as a result of the death of the decedent. If it reached beyond this, one could argue that it would be unconstitutional and penal in nature. The Colorado Constitution in Article II, Section 9 provides that “no conviction can work corruption of blood or forfeiture of estate.” For example, the Slayer Statute operates to sever joint tenancy interests into tenants in common, allowing the killer to retain his or her vested interest in property owned jointly with the victim. Colo. Rev. Stat. § 15-11-803(3)(b).
Furthermore, there are limits to the equitable arguments that can be raised. For example, in a recent Illinois case, the estate administrator made some creative equitable arguments. The victim was killed by her son-in-law and her daughter inherited her estate. The estate administrator argued that the daughter should not inherit the assets because she was still married to the killer and he would therefore, indirectly benefit. The administrator also argued that the daughter had unclean hands because she was convicted of perjury and obstruction of justice during the investigation of her mother’s murder. The Illinois Court of Appeals affirmed the trial court’s ruling that the Slayer Statute only operates to divest the killer of the right to inherit and ultimately rejected these equitable arguments. In re Estate of Opalinska, 45 N.E.3d 687 (Ill. App. (1st) 2015).
Due to the high emotions involved in slayer cases, parties will continue to assert creative equitable arguments to try to ensure that a killer does not profit even indirectly from his or her wrong. While Colorado’s statute provides significant guidance, it will be interesting to see how the law in this area evolves.