Remember O.J.? 

For the people under the age of fifty who might be reading this book, Orenthal James Simpson, former NFL star and broadcasting celebrity, was charged in 1994 with the murder of his ex-spouse Nicole and her friend, Ron Goldman, a waiter in Los Angeles angling for something in the entertainment industry. It was a murder everybody but the jury thought O.J. committed (in the words of a Queens cab driver I encountered at the time, “I don’t know who else would have murdered those people.”). Simpson had a documented history of domestic violence directed at Nicole, and a fair amount of physical evidence linked him to the crime. And yet, he was acquitted of the crime, a result probably helped along by a mix of good lawyering and bad police work.

Not long after the criminal trial, which had been a media event, Simpson got sued again, this time with considerably less publicity. That lawsuit, a civil case, was a wrongful death suit by the victim’s families, claiming that whatever happened in the criminal trial, O.J. still did it and owed the victim’s families a bunch of money as a consequence. He lost that case and got wiped out financially. The wrongful death case was allowed to proceed for two reasons. First, since the victims’ relatives were only looking to pick O.J.’s pocket, the second trial had no criminal consequence and therefore did not violate the so-called “Double Jeopardy” provisions of the U.S. Constitution. Second, the criminal acquittal did not have the effect of exonerating O.J. in the civil trial, because the standard of proof was lower in the Wrongful Death case. Essentially, you’ve gotta be really, really guilty to get the slammer or the chair, but only mostly guilty to be ordered to empty your pockets to the victims’ families.

Wrongful Death just means, “I’ve got some connection to these dead folks and you’re a bad guy who didn’t have any justification for offing them, so give me your money.” It has nothing to do with inheriting from those dead folks. Inheriting money from your victims adds a whole new element of creepy to the death business. Suppose that Nicole and O.J. were still married, she had money and that her will left it all to O.J., or that she had insurance payable to him, or even joint accounts with him. Take their divorce out of the equation (more about that later), that would mean O.J. stood to inherit money by reason of her death— something that raises the specter of people having impure thoughts, motivated by dreams of accelerating those inheritances by way of a little self-help.

Well, rest easy, people with scary relatives: Every state except New Hampshire has a so-called “Slayer Statute”, the civil murder law that prevents people who “Intentionally, and without justification, cause the death of a person,” from receiving any of that inherited loot.

Wait, you say—Why are we discussing this grizzly topic in a book about what to do when you finally get off your bum and go see a lawyer about your will?

Because, it seems that every black and white television melodrama from the fifties, with swelling cello and bassoon music and people chain smoking in darkened hallways, had some unfaithful spouse or spoiled adult child taking out a hefty insurance policy on somebody with the intent of offing that person and collecting the proceeds. The new stuff on cable seems to be rehashing that plot. If you think my outlook sounds dated, think about this: In forty years of handling probate cases, I’ve tried a dozen of these Slayer Statute cases. I’m a probate lawyer and I haven’t tried a dozen contested guardianships, but spouses murdering spouses for money? Ring up the next case, Madame Clerk.

So, yes, it’s still out there, bad people still haven’t gotten the message, and I consider it a public service to clue in those of your friends, relatives and associates who might have designs on inheritance by baseball bat, to let them know it’s time to stop.

Whatever side of this topic you find yourself on, be it scheming spouse or bereaved loved one looking to punish a murderer, you should know that the scope of the Slayer Statutes is so broad, there’s really no way to get around them. Whatever the angle, the law has seen you coming. 

Here’s how Slayer Statutes work: There are lots of different ways somebody can get money because somebody else dies. You can:

• Inherit probate property, under a will or by intestacy;
• Succeed to a house or a bank account as a surviving joint tenant;
• Receive insurance or employee benefits by reason of a beneficiary designation;
• Become a beneficiary under a trust; and even
• Find some money in a coffee can under the dead person’s kitchen sink.

While the details vary state-to-state, Slayer Statutes generally say that, regardless of what you stand to get or how you get it, if you, ”Intentionally and without justification cause the death of the person,” then you are treated for all purposes as though you died before the victim. The people who would otherwise get all the victim’s stuff if you’d never been born, they get it instead of you. That includes the money in that coffee can—everything. The idea is to disincentivize people from killing people just to get money. Yes, plain old murder counts, but the killing doesn’t have to be as purposeful as murder, just mostly on purpose, like you did something bad and it caused somebody to die, even if that wasn’t exactly your main objective.

How’s this differ from plain old murder? First and foremost, there doesn’t need to be a criminal conviction or even a criminal case: Slayer Statute cases proceed independent of whether the cops and the State’s Attorney catch up with the bad guys. Indeed, the cases are often used by frustrated families as a substitute for incarcerating the killer, when no prosecution is pursued because the State’s Attorney believes there’s insufficient evidence for a criminal conviction. Indeed, families often use these cases as an attempt to goad reluctant prosecutors into pursing what might be seen as a difficult murder prosecution, by showing that the wrongdoer is guiltier than he or she otherwise looks to the criminal authorities. 

Second, it’s a lot easier to nail somebody in a Slayer Statute case than in a criminal trial. I’m not just talking about the lower burden of proof. The bad act is different: “Intentionally and without justification causing a death” is not the same as “murder”. The biggest difference is absence of intent to kill. Intent to kill means you’re really trying to do the bad thing you did—it’s not just a dangerous or aggressively stupid act—you got up in the morning and said, “I’m gonna kill my parents,” and then, you did. 

How’s intentionally causing death different? Suppose you’re an angry teenager, and your folks only let you use the car when you pay for your own gas. They check the mileage at night when you bring the car home, to see if they’re getting hosed by your excessive driving. You’re sick of the whole routine, so you decide to scare them as punishment by booby-trapping the garage door, so a bowling ball falls in front of the door if it’s opened after you settle in for the night. Dad checks, your booby trap misfires and smacks him on the head, killing him. Don’t count on any inheritance—while you may not have intended to kill him (that would be murder), you intentionally caused his death by consciously doing something that had his demise as a direct result of your intentional behavior. And, being ticked off at Dad for making you pay for your own gas is not a justification for causing his death.

And, since the objective of Slayer Statutes is to dis-incentivize killing for profit, most states follow an indirect benefit rule, meaning it won’t matter if you, the bad intentional death-causer, actually get the money that pops up because of the death, or if some friend or relative of yours inherits the booty. That dropping bowling ball means nobody who makes you feel good about the inheritance can get an inheritance either, because that would indirectly benefit you. Remember, the idea is to not create any possible incentive for anybody killing anybody. There are cases all over the country where Slayer  Statutes are employed to: 

• Block the killer’s minor children from getting the inheritance, because the killer “might accidentally, indirectly, benefit from the inheritance”; 
• Block the inheritance where the killer’s ex-spouse would get the money as a result of the death because, “…Occasionally, ex-spouses give money to their former mates.” (Really?); and,
• Knock out a resulting gift to a trust for the killer’s dog, because, you guessed it, “A dog is man’s best friend.” 

The Slayer Statutes are so broad in their reach they’ve been interpreted as the only way to override federal rules that require pension and profit-sharing plans to pass to spouses when married employees die. When a benefits lawyer showed me a court decision, ruling that a spouse would be dis-inherited from a pension when she offed her employee husband, I told her that result defeated the entire purpose of guaranteeing spouses inherit employee benefits, supposedly a major federal law policy.

She shrugged and said, “Nobody likes a killer.”

In case you’re not getting the message:

Playing Telephone When Murder’s on the Line

Turns out there’s this successful orthopedic surgeon, Bone Doctor, married for a long time to Very Nice Person, and they both look good in tennis outfits. They’re living the good life, kids off to fancy, east-coast colleges, sporty cars in the three-car garage and Bone Doctor’s practice is comfortably booming.

Mid-life crisis arrives and Bone Doctor gets himself a new, much younger Special Friend. She’s willing to meet up with Bone Doctor at inconvenient times and do exciting things in hotels, but after a while, the Magic Fingers™ machine wired up to the hotel’s vibrating bed loses its appeal. Special Friend starts pressuring Bone Doctor to do something about his spouse, Very Nice Person.

“Divorce is out of the question,” Bone Doctor pleads with Special Friend. “We’ve been married going on thirty years, and she’d get half of everything, including my expanding practice, without which, our extra-curricular lifestyle goes out the window and instead of meeting at the Ritz, we’re stuck in a Best Western out by the Interstate, trying to crowbar those tiny hooch bottles out of the mini-fridge without paying.”  

Meanwhile, Very Nice Person discovers the affair, changes the locks and files for divorce. With a little effort in divorce court, Very Nice succeeds in freezing their accounts, so Bone Doctor and Special Friend can no longer drain the accounts with overnighters at the Ritz. Special Friend is really angry: “Can’t you do something?” she pleads with Bone Doctor. “She shouldn’t be able to get away with this—it’s your hard-earned money.”

Bone Doctor, who like all mid-fifties-aged, mid-life-crisis males, labored under the delusion that Special Friend was just interested in his mature manliness, now senses that Special Friend would also like some of his dough and a bit of that Good Life lifestyle, both of which are threatened by Very Nice spouse’s successful tactics. Worse yet, on the advice of their accountant, Bone Doctor had already transferred a bunch of money into Very Nice’s bank accounts “for tax reasons,” and their house, which represents a big chunk of their net worth, is in dreaded joint-tenancy.

“You’d be better off is she was dead,” Special Friend, who’s been around the block a few times, comments when she hears all this as Bone Doctor bemoans his legal predicament.

Bone Doctor sees an opportunity here. He can always find a new Special Friend; but starting over financially at fifty-four, after Very Nice cleans him out, that requires work, real work, and real work is a grind. Fine, maybe, at twenty-five, but now he’s earned a break, and was hoping to live it up. The thing is, though, he’s got to be careful not to do anything himself—with his hundred-dollar haircuts, creased woolen slacks and imported, calf-skin, tassel loafers, he correctly assumes he wouldn’t last very long in prison. So the key is, encourage Special Friend to follow her instincts. She seems to have some pretty scuzzy hangers-on in her orbit—Bone Doctor wouldn’t even begin to know where to look for that kind of help.

“Yeah, you’re right,” Bone Doctor says, mildly goading Special Friend on. “I work eighty hours a week for decades, and all Very Nice needs is a lawyer and all of a sudden it’s all up for grabs. Problem is, she’s healthy as a horse, all that tennis and no stress, so she’s not checking out any time soon. And, with the boring folks she hangs around with, there’s no chance, and, I mean, No Chance she’s going to meet with any mayhem that would bring her to an untimely end. Looks like we’re screwed.”

Special Friend is no fool—she can take a hint—but like Bone Doctor, she’s not getting her hands dirty, just in case this all turns out badly. She knows this guy, a car-parker at a club where she once worked, who always seemed to be able to get odd jobs done for people very discretely. She offers him some incentives to have a late-night encounter with Very Nice, as she’s parking her car after her evening tennis match at the club. Car Parker Guy takes the dough but then decides life is too short. He splits it with his nephew, who’s in the same line of work, and one night, when Very Nice gets home late, Car Parker Nephew strangles Very Nice to death in her back yard.

“A tragedy,” Bone Doctor announces, as his lawyer moves to dismiss the divorce proceeding—can’t divorce a dead person—but Bone Doctor’s kids, who sided with Very Nice in the divorce, smell a rat. They return from fancy, east-coast colleges and go to the local cops, who suggest they get a lawyer.

As the investigation focuses on Bone Doctor, Special Friend and a host of secondary players, Bone Doctor turns on Special Friend, telling the Cops and anybody else who will listen, “Now that you ask, Special Friend did mention something about how much easier it would be for her to get some of our dough if Very Nice suddenly up and died,” he says. “I never thought much about it, but, gosh, now that you mention it, you don’t suppose….?”

While the criminal case focuses on Special Friend and her associates, the probate lawyer hired by the kids (Yes, by now you’ve figured out that the answer to all life’s problems is to go hire a probate lawyer) tells them, “You know, the Slayer Statute can block Bone Doctor from getting any of Very Nice’s dough, even if he isn’t the one who killed her—even if he wasn’t the one who hired the ones who eventually got her.”

“How’s that work?” the kids ask, incredulous.

“The statute says, “Intentionally and without justification caused her death….. That means, anything he did intentionally, anything that eventually caused her to die, blocks his inheritance. So, having an affair, creating the situation where his paramour, with or without his express encouragement, caused her death, should be enough….”

Sure enough, the kids’ Slayer Statute case, combined with a Wrongful Death chaser, causes Bone Doctor to get knocked out of inheriting anything from Very Nice and her estate, including that joint tenancy residence, even though he’s never even considered as the object of criminal prosecution. The cops can’t even make the case stick against Special Friend—too many layers of responsibility down the chain-of-killer command. But, does Bone Doctor inherit any money off the dire deed? Not a chance, because intentionally causing somebody’s death, when inheritance is involved, is the same as actually doing the dirty-work yourself.

Doesn’t make any difference, because Nobody Likes a Killer.