SECTION 2-803 Uniform Probate Code . EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, TRUSTS, JOINT ASSETS, LIFE INSURANCE, AND BENEFICIARY DESIGNATIONS.

SECTION 2-803. EFFECT OF HOMICIDE ON INTESTATE SUCCESSION, WILLS, TRUSTS, JOINT ASSETS, LIFE INSURANCE, AND BENEFICIARY DESIGNATIONS.
(a) [Definitions.] In this section:
(1) “Disposition or appointment of property” includes a transfer of an item of
property or any other benefit to a beneficiary designated in a governing instrument.
(2) “Governing instrument” means a governing instrument executed by the
decedent.
(3) “Revocable,” with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself [or

227

herself] in place of his [or her] killer and whether or not the decedent then had capacity to exercise the power.
(b) [Forfeiture of Statutory Benefits.] An individual who feloniously and intentionally kills the decedent forfeits all benefits under this [article] with respect to the decedent’s estate, including an intestate share, an elective share, an omitted spouse’s or child’s share, a homestead allowance, exempt property, and a family allowance. If the decedent died intestate, the decedent’s intestate estate passes as if the killer disclaimed his [or her] intestate share.
(c) [Revocation of Benefits Under Governing Instruments.] The felonious and intentional killing of the decedent:
(1) revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and
(2) severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship [or as community property with the right of survivorship], transforming the interests of the decedent and killer into equal tenancies in common.
(d) [Effect of Severance.] A severance under subsection (c)(2) does not affect any third- party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

228

(e) [Effect of Revocation.] Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent.
(f) [Wrongful Acquisition of Property.] A wrongful 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 [or her] wrong.
(g) [Felonious and Intentional Killing; How Determined.] 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. 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.
(h) [Protection of Payors and Other Third Parties.]
(1) A payor or other third party is not liable for having made a payment or
transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by an intentional and felonious killing, or for having taken any other action in good faith reliance on the validity of the governing instrument, upon request and satisfactory proof of the decedent’s death, before the payor or other third party received written notice of a claimed forfeiture or revocation under this section. A payor or other third party is liable for a

229

payment made or other action taken after the payor or other third party received written notice of a claimed forfeiture or revocation under this section.
(2) Written notice of a claimed forfeiture or revocation under paragraph (1) must be mailed to the payor’s or other third party’s main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. Upon receipt of written notice of a claimed forfeiture or revocation under this section, a payor or other third party may pay any amount owed or transfer or deposit any item of property held by it to or with the court having jurisdiction of the probate proceedings relating to the decedent’s estate, or if no proceedings have been commenced, to or with the court having jurisdiction of probate proceedings relating to decedents’ estates located in the county of the decedent’s residence. The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
(i) [Protection of Bona Fide Purchasers; Personal Liability of Recipient.]
(1) A person who purchases property for value and without notice, or who
receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the

230

value of the item of property or benefit, to the person who is entitled to it under this section. (2) If this section or any part of this section is preempted by federal law with
respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.
Comment
Purpose and Scope of Revisions. This section is substantially revised. Although the revised version does make a few substantive changes in certain subsidiary rules (such as the treatment of multiple party accounts, etc.), it does not alter the main thrust of the pre-1990 version. The major change is that the revised version is more comprehensive than the pre-1990 version. The structure of the section is also changed so that it substantially parallels the structure of Section 2-804, which deals with the effect of divorce on revocable benefits to the former spouse.
The pre-1990 version of this section was bracketed to indicate that it may be omitted by an enacting state without difficulty. The revised version omits the brackets because the Joint Editorial Board/Article II Drafting Committee believes that uniformity is desirable on the question.
As in the pre-1990 version, this section is confined to felonious and intentional killing and excludes the accidental manslaughter killing. Subsection (g) leaves no doubt that, for purposes of this section, a killing can be “felonious and intentional,” whether or not the killer has actually been convicted in a criminal prosecution. Under subsection (g), 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. Acquittal, however, does not preclude the acquitted individual from being regarded as the decedent’s killer for purposes of this section. This is because different considerations as well as a different burden of proof enter into the finding of criminal accountability in the criminal prosecution. Hence it is possible that the defendant on a murder charge may be found not guilty and acquitted, but if the same person claims as an heir, devisee, or beneficiary of a revocable beneficiary designation, etc. of the decedent, the probate court, upon the petition of an interested person, may find that, under a preponderance of the evidence standard, he or she would be found criminally accountable for the felonious and intentional killing of the decedent and thus be barred under this section from

231

sharing in the affected property. In fact, in many of the cases arising under this section there may be no criminal prosecution because the killer has committed suicide.
It is now well accepted that the matter dealt with is not exclusively criminal in nature but is also a proper matter for probate courts. The concept that a wrongdoer may not profit by his or her own wrong is a civil concept, and the probate court is the proper forum to determine the effect of killing on succession to the decedent’s property covered by this section. There are numerous situations where the same conduct gives rise to both criminal and civil consequences. A killing may result in criminal prosecution for murder and civil litigation by the decedent’s family under wrongful death statutes. Another analogy exists in the tax field, where a taxpayer may be acquitted of tax fraud in a criminal prosecution but found to have committed the fraud in a civil proceeding.
The phrases “criminal accountability” and “criminally accountable” for the felonious and intentional killing of the decedent not only include criminal accountability as an actor or direct perpetrator, but also as an accomplice or co-conspirator.
Unlike the pre-1990 version, the revised version contains a subsection protecting payors who pay before receiving written notice of a claimed forfeiture or revocation under this section, and imposing personal liability on the recipient or killer.
The pre-1990 version’s provision on the severance of joint tenancies and tenancies by the entirety also extended to “joint and multiple party accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.” Under subsection (c)(2) of the revised version, the severance applies only to “property held by [the decedent and killer] as joint tenants with the right of survivorship [or as community property with the right of survivorship].” The terms “joint tenants with the right of survivorship” and “community property with the right of survivorship” are defined in Section 1-201. That definition includes tenancies by the entirety, but excludes “forms of co- ownership registration in which the underlying ownership of each party is in proportion to that party’s contribution.” Under subsection (c)(1), any portion of the decedent’s contribution to the co-ownership registration running in favor of the killer would be treated as a revocable and revoked disposition.
Subsection (e) was amended in 1993 to make it clear that the antilapse statute applies in appropriate cases in which the killer is treated as having disclaimed.
ERISA Preemption of State Law. The Employee Retirement Income Security Act of 1974 (ERISA) federalizes pension and employee benefit law. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), provides that the provisions of Titles I and IV of ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” governed by ERISA. See the Comment to Section 2-804 for a discussion of the ERISA preemption question.
Cross References. See Section 1-201 for definitions of “beneficiary designated in a governing instrument,” “governing instrument,” “joint tenants with the right of survivorship,”

232

“community property with the right of survivorship,” and “payor.”
Historical Note. The above Comment was revised in 1993. For the prior version, see 8 U.L.A. 161 (Supp. 1992).
1997 Technical Amendment. By technical amendment effective July 31, 1997, the word “equal” was added to subsection (c)(2) to make it clear that the effect of severing the interests of the decedent and killer is to transform their interests into equal tenancies in common, without regard to the percentage of consideration furnished by either. Although this was the intent of this subsection, the court in Estate of Garland, 928 P.2d 928 (Mont. 1996), misconstrued the original language and held that once the interests were severed and transformed into tenancies in common, the shares “depend on the decedent’s and the [killer’s] individual contributions to the acquisition and maintenance of the property.” This percentage-of- consideration rule is inconsistent with both the general principle of Section 2-803 and with the statutory language. Section 2-803 is based on the principle that while the killer should not gain from the killing, neither should the killer be deprived of the killer’s own property. In the case of a joint tenancy, neither the killer nor the victim could by a lawful, unilateral act have severed and become owner of more than his or her fractional interest. This is true even if one joint tenant provided more consideration than another joint tenant. Once property is titled in joint tenancy, any excess consideration provided by one joint tenant constitutes an irrevocable gift to the other joint tenant or tenants. The original statutory language established a fractional-interest rule by providing that the interests that are transformed into tenancies in common are “the [severed] interests of the decedent and killer.” This statutory language, as revised, confirms this strict fractioning.