The Slayer’s Rule arose from common law based on the principle that one should not profit from his or her wrongful act. Although fairly straightforward in theory, the operation and effect of the Slayer’s Rule has not been easy to implement.
The vast majority of jurisdictions have a statutory Slayer’s Rule. The Restatement (Third) Prop.: Wills and other Donative Transfers § 8.4 (2003) (hereafter the “Restatement Third”) counts 46 such statutes. Historically, Maryland has relied upon the common law for its rule. The Maryland General Assembly is poised to codify the Slayer’s Rule. House Bill 1211 has pass on the House floor 137 votes to zero on March 17, 2013. It came out of the Senate Judicial Proceedings Committee nine to zero. Presumably it will become law.
Background – the Common Law: the Nature of the Act. Under the common law in Maryland, a person was disqualified to inherit if he or she “feloniously” kills the person from whom he or she would otherwise inherit. Not all killings trigger the rule. Thus, a husband who killed his wife through gross negligence could inherit. Schifanelli v. Wallace, 271 Md. 177, 315 A.2d 513 (1974).
Likewise, an intentional killing where the slayer suffers from mental illness and is therefore not culpable may inherit:
“Equally a matter of equity, justice and morality and a reflection of public policy is the present enlightened definition of criminal insanity under which punishment for the commission of a crime is prohibited. The terms of that definition simply make the maxims prompting the rule – no one shall be permitted to profit by his own fraud, to take advantage of his own iniquity, or to acquire property by his own crime – inappropriate when a person is criminally insane. A person who suffers a mental disorder or is mentally retarded and falls under the cognitive and volitive components of the criminal responsibility statute does not, by the very terms of those components, act with an unfettered will. His conduct is controlled and his will is dominated by his mental impairment. Fundamentally, a killing is “felonious” when the homicide is a felony. In the frame of reference of the slayer’s rule, however, the legislative policy regarding criminal responsibility leads to a qualification of this meaning. We believe that a homicide to be “felonious” in the context of the slayer’s rule, it must be a felony for which the killer is criminally responsible under Maryland’s criminal insanity test. Therefore, if a killer is “insane” at the time he killed, the killing is not felonious in the contemplation of the slayer’s rule. If the killing is not felonious, even though it may be intentional, the rule does not apply. Our view does not do violence to the broad public policies inherent in both the rule and the criminal insanity statutes. On the contrary, it furthers the principles of equity, justice and morality recognized by both the rule and the statute.”
Ford v. Ford, 307 Md. 105, 123, 512 A.2d 389, 398 (1986). The Slayer’s Rule would apply, however, to voluntary manslaughter as that offense is both “felonious and intentional.” Chase v. Jennifer, 219 Md. 564, 150 A.2d 251 (1959).
Background – the Common Law: The Operation of the Slayer’s Rule. Obviously, the slayer does not inherit. Who, however, does inherit? Under the common law, two basic approaches were recognized. One approach imposed the disqualification to the slayer but permitted the moral intestacy statutes to operate. The other approach, which Maryland adopted, precluded the slayer and his or her heirs and personal representatives from taking. In Price v. Hitaffer, 164 Md. 505, 165 A.2d 470 (1933) a husband murdered his wife and then committed suicide. The wife died childless. The issue was whether the husband’s sister and brother inherited the husband’s one-half of the estate. The Court of Appeals held that the act of murder meant that the husband never acquired an interest in his wife’s estate. Thus, her entire estate went to her parents. [Not incidentally, this holding side-stepped the issue of the Maryland constitutional (and statutory) prohibition against “corruption of blood” and forfeiture by conviction of a felony because the husband never acquired an interest to forfeit.]
Arguably an equitable result was effectuated in the Price case. The application of this theory as to the Slayer’s Rule, however, can produce odd, and perhaps unjust, results. In Cook v. Grierson, 380 Md. 502, 845 A.2d 1231 (2004) a son murdered his father. The father died intestate with a surviving spouse (the stepmother), his son (the murderer) and his grandchildren (the children of the murderer). The Court held that the grandchildren did not inherit. They were not intestate heirs because § 1-209 of the Md. Code Ann., Est. & Trust Article defines “issue” as “any living lineal descendants except a lineal descendant of a living lineal descendant.” The son is precluded from inheriting due to the Slayer’s Rule and the grandchildren are not “issue” per the statute. In Cook v. Grierson, the grandchildren tried to rely on an earlier case that permitted the “innocent” heirs of a slayer from receiving benefits under an insurance contract. In the case, however, those heirs received by the terms of the contract not by intestacy as alternative takers. Diep v. Rivas, 357 Md. 668, 745 A.2d 1098 (2000).
House Bill 1211 – The Codification in General. The Maryland General Assembly is passing a Bill to codify the Slayer’s Rule. Basically, it followed the Uniform Probate Code model to treat the slayer as having disclaimed his or her intestate share or bequest under a Will or Trust.
For intestacy, it would effectively reverse the holding of Cook v. Grierson. If the Bill controlled, the son would have been treated as disclaiming his intestate share and that share would pass to the grandchildren. The widow would receive her share ($15,000 plus 1/2) per the statute ( § 3-102).
One can envision, however, circumstances where the disclaimer applied may not produce what the victim may have wanted. In Price v. Hitaffer, a husband murdered his wife who was childless. The wife’s parents inherited her estate (over the husband’s siblings) because the court ruled that the husband never acquired an interest in her estate. If the murderer is treated as having disclaimed, this would not change the Price result in intestacy. Slightly different facts, however, could raise very different considerations. Assume in Price, that the wife had a Will leaving everything to her husband without a provision requiring survivorship. Then the anti-lapse statute would kick in to mean that the bequest to the murderer would go to his relatives. One commentator suggests changing the anti-lapse statute to not operate to pass property to non-relatives of the victim in slayer rule situations. Tara L. Pehush, Maryland is Dying for a Slayer Statute: The Ineffectiveness of the Common Law Slayer Rule in Maryland, 35 U. Balt. L. Rev. 271 (2006).
Codification and Joint Property. The Maryland proposal if adopted, would terminate any survivorship provisions for joint property held by the decedent and the slayer (“severed at the time of the death”). This proposal states that the property then passes as if the decedent and the slayer have no rights of survivorship. The Uniform Probate Code version states that such property reverts to being held equally as tenants in common. Comments to that Act, however, point to a change between the pre- and post-1990 versions of the UPC. The current version excludes joint and multiple bank accounts and other forms of co-ownership with rights of survivorship from inclusion in this provision. Those accounts are treated as giving the slayer a general or non-general power of appointment that is revoked by the felonious killing. The effect of this decision is that the underlying ownership of each party is in proportion to that party’s contribution to the account. By using disclaimer treatment generally, the Maryland rule would arguably yield the same result.
Preserving Civil Litigation Remedies. After House Bill 1211 was first introduced, it was amended to explicitly acknowledge that a slayer is not precluded from inheriting only after a criminal conviction. Instead, even in the absence of such a conviction, affected persons – family of the victim – can bring a civil suit to determine that the slayer is disqualified from inheriting. The civil standard, of course, is not as high as the “beyond a reasonable doubt” test applied in the criminal case.
