Kevin Bennardo has made available for download his article, “Slaying Contingent Beneficiaries,” published in the Wills, Trusts, & Estates Law eJournal, Vol. 12, No. 4, Feb. 2016.
The Abstract reads as follows:
This Article analyzes what impact, if any, the slaying of one beneficiary by another should have on distribution of a decedent’s property. This issue could arise in a variety of conveyances, such as intestate succession, wills, pay-on-death bank accounts, transfer-on-death securities, or life insurance proceeds. Based on equity, the Restatement (Third) of Restitution takes the position that a beneficiary may never move forward in the line of succession as the result of a slaying. This result is thought to be an extension of the traditional “slayer rule,” which disallows a slayer from inheriting from her victim.
The Article argues for the opposite conclusion: the slaying of a higher-priority beneficiary by a contingent beneficiary does not result in unjust enrichment because it does not result in a transfer of a property interest to the slayer. Although the slayer advances in the line of succession as a result of the slaying, the slayer still only possesses a defeasible expectancy, not a property interest. Because an expectancy is the legal equivalent of nothing, the slayer has not profited as a result of the killing.
Thus, the property distribution should be governed by the likely intent of the owner of the estate rather than by the Restatement’s misguided notion of equity. When there is no governing instrument, the best approach is to presume that the owner of the estate would neither wish to totally disinherit the slayer nor permit the slayer’s share to increase as a result of the slaying. Thus, the slayer’s distribution should be calculated as if the victim of the slaying did not predecease the owner of the estate. But when there is a governing instrument that was either republished after the slaying or went unchanged for a reasonable time after the slaying, the law should simply carry out the property distribution as directed in the instrument even if it results in a larger share for the slayer than the slayer would have received if the slayer’s victim was still alive. This result is most likely in keeping with the intent of the estate’s owner.
Download full article at: Slaying Contingent Beneficiaries by Kevin Bennardo :: SSRN