Carla Spivack of Oklahoma City University's law school has a new paper up on ssrn, "Killers Shouldn't Inherit from Their Victims . . . Or Should They?" Here is the abstract:
offers a profound reassessment of so-called “Slayer Rules,” laws that, in all
states, bar killers from inheriting from their victims. For the first time in
the literature, this piece questions the underlying rationale for these rules by
examining the context of family violence and mental illness in which these
killing occur, and argues that, given that context, these rules are often
neither legally nor morally justified.
My argument is as follows: at first glance, the idea behind Slayer Rules seems reasonable, indeed, morally obvious: a killer should not be able to profit from his or her crime. This truism, however, may not necessarily be true. Where murder and inheritance overlap, we often find family. When family members kill one another, the equities are often cloudy. The sociopathic child who kills a grandparent to hasten an inheritance is an anomaly. In reality, murders within families are usually a product of that family’s harmful, often violent, dynamics, from which, because of the failures of state and society, a family member sometimes can find no escape except murder. Most women who kill their husbands or partners do so to protect themselves or their children from violence. Most children who kill a parent act to stop severe and prolonged abuse by that parent; most of the other child killers are acutely mentally ill. Most mothers who kill children suffer from post-partum psychosis, a severe mental illness whose symptoms include visual and auditory hallucinations and delusions. Once the tragedy has occurred, the legal system often fails to address the defendant’s plight, offering inadequate representation, barring effective defenses at trial, and extorting guilty pleas that may not reflect actual guilt. Given this reality, it’s not clear that barring the defendant’s inheritance is just, fair, or even sound policy.
Carla's article is part of the growth (or perhaps I should say rebirth) of serious work in trusts and estates that we've been seeing in the last half-dozen years or so. I think this is happening for several reasons -- first, a lot of newer scholars have realized that the area is ripe for analysis along lines of gender (and to a lesser extent race and class) that have been so prominent in allied areas, like property. Second, there is a realization that there is room for a lot of empirical and doctrinal work as well--especially doctrinal work; and third, this is an area that has increasing appeal for students, in part because there seem to be better job opportunities here than in many other areas (or maybe I should say less bad career opportunities).
I'm particularly intrigued by Carla's framing of this -- where the conventional wisdom is that slayers shouldn't be able to inherit from the people they kill, Carla reminds us that the statutes apply almost exclusively against family members. (A slayer might be a non-family member beneficiary of a will, trust, or life insurance contract. Or one might be a non-family member and joint tenant with the decedent.) Because of the preponderance of family members among the slayers, Spivack suggests that blanket provisions against inheriting may work inappropriate hardship. Carla raises some really serious questions about whether slayer statutes -- which I usually fully support -- are too broad. And whether we should allow slayers to inherit from family member decedents. I wonder how much this will matter, because I'd imagine that a lot of people who would inherit absent a slayer statute will still be liable up to the value of what they inherit in a wrongful death suit to the decedent's other heirs. Though I suppose this could be handled by limiting wrongful death claims when a family member is slayer. That would be controversal, to say the least.
Anyway, if you teach trusts and estates or family law you'll find the article worth reading. I'm excited by how much new and interesting scholarship is being written in trusts and estates these days!