Sunday, November 10, 2013

Should "Elder Abuse" Trigger Disinheritance?

So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers.  The bar may arise by common law, often rooted in equity, or statute.   

As Harvard Law Professor Robert Sitkoff  summarizes well in his 9th edition (Dukeminier) of  Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."

However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason. 

For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions. 

The Washington case involved allegations made by three surviving children against their father's second wife.  The father was in his late eighties when he married the younger woman, who was younger by fifty years.  The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death.  See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).

In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults.  Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).

And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?" 

Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.

http://lawprofessors.typepad.com/elder_law/2013/11/should-elder-abuse-trigger-disinheritance-.html

Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink

TrackBack URL for this entry:

http://www.typepad.com/services/trackback/6a00d8341bfae553ef019b00de7d02970b

Listed below are links to weblogs that reference Should "Elder Abuse" Trigger Disinheritance? :

Comments

Post a comment