April 14, 2020 Best of ABA Sections

Giving Abused Spouses Their Inheritance Rights Back

Michelle E. Loakes

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Kelli was only 19 when she decided that her husband had hit her for long enough. One day, Kelli bought a gun and determined that her best means of escaping her abusive marriage was to kill her abusive husband. Kelli was convicted of manslaughter. The jury determined that she was culpable despite the abusive circumstances; she served a 15-year sentence in prison.

Individuals such as Kelli should not be forced to serve long sentences for killing someone who abused them physically, mentally, and emotionally every day. Yet, a recent study shows that battered women are rarely afforded a mitigating circumstance at trial for killing their abusers. Further, when these women reenter society after serving their sentence, any inheritance that their abuser-husband left them would have passed to someone else; these women are deprived of important property rights in probate court under the slayer rules.

The slayer rule is a majority rule in inheritance law that bars a beneficiary under a will from inheriting property from a testator when the beneficiary intentionally kills the testator. States have implemented the rule to give testator-decedents a voice in effectively rewriting their wills when the beneficiary-slayer unexpectedly kills the testator.

The slayer statutes focus on the slayer’s wrongdoing to ensure that slayers are not rewarded for killing the testator, which would unjustly enrich the slayer for committing the crime. Under all slayer rules, courts must show that the slayer intentionally killed the victim to determine that a wrongdoing occurred. The focus on the slayer’s wrongdoing requires looking closely into the criminality of the killing itself, and the application of the rule may be overcome by various criminal law doctrines that negate the offense, such as insanity and self-defense.

The policy of probate courts to effectuate testator intent aligns closely with the slayer rule that prevents someone from inheriting property by “altering the order of death.” Slayer statutes, in particular, have been implemented in various states due to the inference that “a change of intent” took place when the beneficiary slew the testator. If it were possible to ask the deceased testator whether or not he or she would still want his or her property bequeathed to the beneficiary, the testator would likely desire the property to go elsewhere. It is likely that the testator would not intend to bequeath property to a beneficiary when the testator’s death was a direct result of the beneficiary’s unexpected criminal actions.

However, despite attempts to maintain testator intent, complex circumstances arise when probate courts are called on to determine whether the testator would intend to bequeath property to an insane beneficiary. It is possible that testators could appreciate the mitigating circumstances behind an insane beneficiary killing them, and testators would still want these beneficiaries to inherit. Nevertheless, some courts struggle to determine whether effectuating the testator’s intent should supersede the focus on the slayer’s wrongdoing, and some states have declined to recognize an insanity exception altogether. Other states have negated the wrongdoing through an insanity determination. Further, although some courts have protected individuals who suffer from prolonged insanity, difficulties may arise when the slayer is only temporarily insane.

In addition, general inheritance law seeks to protect the family. The law especially seeks to protect spouses from being denied an inheritance, including allowing spouses to decline a bequest under a will and alternatively claim an elective share portion of the estate. Often, family violence between spouses involves domestic violence rather than crimes committed for financial gain, and it is necessary for courts to consider the complex circumstances behind the slaying itself. As courts encounter sensitive situations, such as when an abused spouse kills an abusive spouse, it is necessary to consider both the original policies behind the slayer rules and the policy behind protecting spouses.

Abused spouses, in particular, have increasingly turned to courts to help them escape their abusive marriages, but this same group may be denied inheritance rights if the law cannot excuse their actions when the abuse leads them to kill their abusers. Moreover, abused spouses often remain in abusive relationships due to economic restraints. Abused spouses should not be deprived of future economic benefits from inheritances. Thus, many states permit an exception that could make the slayer rule ineffective—if the killing was done in self-defense. However, abused spouses face a difficult hurdle when presenting a self-defense claim due to the lack of imminence from the abuser spouse’s conduct when the spouse is not causing harm at that specific moment. Accordingly, abused spouses may be more successful in raising a temporary insanity defense if the abused wife can prove that she was temporarily insane during the commission of the offense; she will likely fall under the insanity exception to the slayer rule and will be allowed to inherit.

The application of the slayer rule and the insanity exception relies wholly on the judicial process of interpreting probate statutes and the various proceedings that overlap between criminal and civil trials. Within the slayer rule analysis, the criminal proceeding foreshadows the outcome in the probate court by first determining if an “intentional killing” took place. Therefore, the criminal proceeding is important when applying the slayer rule, especially when determining the issue of insanity. The temporary insanity exception must overcome similar hurdles that the prolonged insanity exception has already overcome.

It is unclear whether the slayer rule insanity exception already encompasses temporary insanity. Many battered spouses have not consistently raised the defense; therefore, there is a lack of case law to determine if these women are exempt under the slayer rule as is or if legislatures must modify the exception to extend the general insanity exception to include temporary insanity. In the interest of protecting battered spouses, this article argues that state legislatures should amend the slayer statutes to encompass the exception for temporary insanity. Through codifying the temporary insanity exception, women in abusive relationships who kill their abusers will be able to inherit because the situation will fall under a recognized exception to the slayer rule. Additionally, when criminal defense practitioners represent battered female clients, the attorneys could advise their clients to raise the temporary insanity defense during criminal proceedings, which would preserve their inheritance rights in probate court.


This article is an abridged and edited version of one that originally appeared on page 291 of Real Property, Trust and Estate Law Journal, Fall 2017 (52:2).

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Michelle E. Loakes

Michelle E. Loakes practices law in Santa Barbara, California.