Ask the Probate Judge—Can You Profit from Your Misdeeds?
Rudd, appeared January 22, 2004, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Q: I have read about several cases where one spouse murdered the other. Can the murderer still inherit from the dead spouse's estate?
Public policy frowns upon allowing people to profit from their misdeeds. But people, including alleged murderers, are innocent until proven guilty.
New Mexico's probate code addresses this specific issue. "The felonious and intentional killing of the decedent," the law reads, revokes any revocable "disposition or appointment of property made by the decedent to the killer in a governing instrument…." "After all right to appeal has been exhausted, a judgment of conviction establishing criminal accountability for the felonious and intentional killing of the decedent conclusively establishes the convicted individual as the decedent's killer for purposes of this section."
A killer also loses his or her right to serve as a fiduciary, including a personal representative, executor, trustee, or agent, for the decedent.
Any joint tenancies between a killer and decedent convert to tenancies in common. Instead of inheriting the joint property automatically as the surviving joint tenant, the killer owns only his or her one-half interest. The decedent's one-half share would pass according to the decedent's will, if any, or laws of intestate succession.
The law further says, "An acquisition of property or interest by a killer not covered by this section must be treated in accordance with the principle that a killer cannot profit from his wrong."
New Mexico's law contains a curious section that reads, "In the absence of a conviction, the court upon the petition of an interested person must determine whether under the preponderance of evidence standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent. If the court determines that under that standard the individual would be found criminally accountable for the felonious and intentional killing of the decedent, the determination conclusively establishes that individual as the decedent's killer for purposes of this section."
This provision of the law is curious because it appears to allow a court to use a lesser standard of evidence-the civil "preponderance of evidence" standard rather than the higher criminal standard of "beyond a reasonable doubt"-to curtail someone's inheritance rights. Even if a person is acquitted of a murder or found guilty of a lesser charge, a civil case brought under the above law might still prohibit that person from inheriting.
I can imagine both fair and unfair results in applying this law to particular cases, but I do not know whether this section of New Mexico's law is often used. If anyone has an example to share, I would be glad to learn how this particular section of the law plays out in the real world.
© 2004, Merri Rudd & Albuquerque Journal, All Rights Reserved