Winter 2008 Newsletter
Skirmish in Session: Revising the Definition of “Slayer” in Virginia’s Slayer Statute
By: Katie Wallmeyer Payne
“Nullus commodum capere potest de injuria sua propria.”
(“No one shall take advantage of his own wrong.”)1
“Slayer statutes” are laws that prevent killers from inheriting from their victims, and are based on the common law principle that wrongdoers should not be able to benefit from their wrong doing.2 The definition of “slayer” in Virginia’s slayer statute has historically been one of the nation’s most limited, including only those killers convicted of murder.3 In 2008, Virginia’s General Assembly significantly expanded the definition of“slayer” to include those convicted of murder or voluntary manslaughter.4 Virginia’s new definition of “slayer” is not only broader than it used it be, but also now broader than most other states’definitions. In less than one century, Virginia’s definition of “slayer” has gone from one of the nation’s most limited to one of its most expansive.
I. The History of Slayer Statutes in the United States
Courts around the world have historically required felons to relinquish their property rights upon conviction.5 Such forfeiture laws are rooted in the common law principle that a wrongdoer should not benefit from his own wrongdoing.6 However,early American states largely abandoned forfeiture laws in their constitutions, allowing murderers to inherit property from their victims.7 Unlike their English counterparts, American courts were reluctant to prohibit such outcomes without a legislative mandate.8 Since the late nineteenth century, however, nearly every state has enacted a slayer statute to prevent killers from inheriting from their victims.9
Slayer statutes vary in several respects, including: the degree of the crime required for the statute to apply, the property rights forfeited by the slayer, and the alternate takers available if the statute prohibits the slayer from inheriting.10 Some slayer statutes, for instance, only bar intentional killers from inheriting,while others bar unintentional killers as well.11 Some require a criminal conviction, while others donot.12 Some statutes only forfeit the killer’s testate or intestate inheritance, while others forfeit his inheritance through insurance policies, joint tenancies,and other statutory methods of taking.13 Some statutes forfeit only the killer’s inheritance, while others forfeit the killer’s descendents’inheritance as well.14 Despite their differences, all slayer statutes are designed to deter opportunistic heirs-apparent from killing their benefactors.15
II. The History of Virginia’s Slayer Statute
The General Assembly enacted Virginia’s first slayer statute in 1919.16 The original statute’s definition of “slayer” was unusually limited, punishing killers only if they had killed in order to inherit the victim’s property.17 This motive requirement mandated more than just proof of an unlawful killing to forfeit the killer’s inheritance rights.18 Rather, “the statute requires that the killing be done in order to obtain the estate, or an interest therein, of the person killed.”19
The General Assembly made several amendments to Virginia’s slayer statute between 1919 and1981, including removing the motive requirement.20 Despite the amendments, critics complained that the original statute required a complete overhaul.21 Among the concerns, critics did not like that the definition of “slayer” in the statute required a killer to be convicted of murder and that it only prevented the killer from inheriting through testate succession, intestate succession and insurance proceeds.22
When the General Assembly eventually replaced the 1919 slayer statute in 1981, it relied heavily on a 1936 Harvard Law Review article which proposed a model framework of slayer statutes followed in many other states.23 Virginia’s 1981 slayer statute further restricted a killer’s inheritance rights.24 Instead of preventing killers from inheriting only testate, intestate, and insurance takings from their victims, the 1981 statute also excluded statutory survivorship rights, tenancies by the entirety, joint tenancies, reversions, vested remainders, contingent remainders, future interests,and powers of appointment.25 The 1981 statute also included a provision requiring courts to construe the new law broadly so that “no person shall be allowed to profit by his own wrong, wherever committed.”26 The General Assembly did not,however, revise the definition of “slayer” to include anyone not convicted of murder.27
Since its revision in 1981, the General Assembly passed several amendments to the Virginia slayer statute.28 One significant amendment revised the definition of “slayer” to include a killer who “has not been acquitted and is not available for prosecution by reason of his death or suicide or otherwise,who is determined by a court of appropriate jurisdiction by a preponderance of the evidence to have murdered the decedent.”29 This amendment, while still requiring a murder conviction for slayers inmost instances, provided a measure of the “statutory remedy preventing unjust enrichment” that critics of the original statute desired.30
III. Revising Virginia’s Definition of “Slayer”
The 2008 definition of “slayer” was the result of an extended debate between two bills introduced in the 2008 General Assembly.31 All of the parties agreed that Virginia’s slayer statute, which required a murder conviction in most cases, was too limited in scope.32 They disagreed, however, about which formulation of homicide the Commonwealth shouldadopt.33 Senate Bill 450, introduced by Senators J. Chapman “Chap” Petersen (D-34th) and Linda T. Puller (D-36th), sought to include killers convicted of manslaughter, in addition to murder, in the definition of “slayer.”34 House Bill 949, introduced by Delegate Sal R. Iaquinto (R-84th), sought to give judges discretion in cases where excusable killers were prevented from inheriting.35 Although these bills did not receive much attention from the press, the battle between them continued until the last day of the session.36
Senators Petersen and Puller’s bill was inspired by a killing in Loudon County on July 6th, 2005.37 Former U.S. Marshal John W. Ludwig was accused of killing his wife by shooting her multiple times in the torso after a domestic dispute.38 The Commonwealth’s Attorney insisted that Ludwig shot his wife in a drunken rage without provocation, while Ludwig’s attorney maintained that he had reacted to years of his wife’s verbal and physical abuse.39 Ludwig was charged with first-degree murder.40 A jury, however, found him guilty of voluntary manslaughter for killing his wife in the heat of passion.41
Following his conviction, Ludwig claimed entitlement to the proceeds of his wife’s life insurance policy.42 Ludwig argued that Virginia’s slayer statute did not apply to him because he had not been convicted of murder.43 A federal court found that a mere technicality prevented Ludwig from collecting the insurance proceeds: the policy had been purchased in Pennsylvania, which has a more expansive slayer statute.44
It was Ludwig’s near-success at claiming his dead wife’s insurance proceeds that spurred Petersen and Puller to propose their bill.45 As Petersen stated, “To me, it’s simple justice that someone who causes the death of another, whether you call it murder or manslaughter…shouldn’t be able to profit from their crime.”46 Petersen and Puller advanced a revision of the definition of “slayer” to include those convicted of manslaughter.47 When faced with criticism about the breadth of this revision, Petersen agreed to include only those convicted of voluntary manslaughter in the definition.48
Delegate Iaquinto’s bill, on the other hand, sought to give courts discretion to apply the slayer statute in cases of voluntary manslaughter.49 Iaquinto’s bill was also inspired by a killing in the Commonwealth.50 On May 26th, 2007, Jermaine Gregory and his father went looking for robbers who had taken $750 from Jermaine earlier in the day.51 When the two spotted the robbers from their car, Jermaine began shooting through the window.52 During the fray, Jermaine accidentally shot his father, who died soon after.53 A court convicted Jermaine of voluntary manslaughter for the accidental shooting,54 and sentenced him to one year in prison.55
Under Virginia’s 1981 slayer statute, Jermaine’s inheritance rights would be unaffected by this conviction; under Petersen and Puller’s bill, however, he would be barred from inheriting any of his father’s estate.56 Iaquinto’s bill, backed by the American Bar Association, would give judges discretion in cases like Jermaine’s, when accidental killers are convicted of voluntary manslaughter.57 Supporters of Iaquinto’s bill argued that it could avoid the over-breadth created by Petersen and Puller’s bill which would exclude killers whom the slayer statute never intended to cover, such as victims of battered women’s syndrome whose killings are precipitated by years of abuse.58
Petersen, Puller, and Iaquinto introduced both bills to their respective houses on the first day of the 2008 General Assembly session.59 Although both bills received a large majority of votes in their respective chambers, neither was able to pass the other house.60 In the hopes of revising the slayer statute in a compromised form, Senators Petersen,Deeds (D-25th), and Cuccinelli (R-37th) met with Delegates Iaquinto, Gilbert (R-15th), and Toscano (D-57th) in a joint conference to try to reach anaccord.61 Although it seemed unlikely that any version of the slayer statute would pass such divided houses, the conference managed to reach an agreement on the last day of session.62 After much deliberation, the General Assembly revised the definition of “slayer” to mirror the language in Petersen and Puller’s bill.63
The new definition of “slayer” reads:
"Slayer” shall mean any person (i) who is convicted of the murder or voluntary manslaughter of the decedent or, (ii) in the absence of such conviction, who is deter-mined, whether before or after his death,by a court of appropriate jurisdiction by a preponderance of the evidence to have commit-ted one of the offenses listed in subdivision(i) resulting in the death of the decedent. For the purposes of subdivision (ii), the party seeking to establish that a decedent was slain by such person shall have the burden ofproof.64
IV. The New Virginia Slayer Statute
The stories behind both Petersen and Puller’s bill and Iaquinto’s bill were compelling, but the General Assembly ultimately had to decide whether judges should have discretion in determining who is a “slayer.” For now, the General Assembly has declared that judges shall not have the discretion to exclude voluntary manslaughter from the purview of the slayer statute. Under the newly revised statute, both John Ludwig and Jermaine Gregory would be considered “slayers” in Virginia and would forfeit their inheritance rights. The new definition is not only expansive by Virginia’s standards, but by national standards, as well. Only time will tell whether its scope is unduly broad.
Katie Wallmeyer Payne is a third year student at the University of Richmond Law School. She is the Editor–in-Chief of the Richmond Journal of Law and Public Interest. She is the winner of the 2008 Trusts and Estates Section Law Student Writing Competition.
1WALTER A. SHUMAKER & GEORGE FOSTER LONGSDORF, THE CYCLOPEDIC LAW DICTIONARY 710 (James C. Cahill ed., 2d ed. 1922).
2J. Rodney Johnson, Twenty-Sixth Annual Survey of Developments in Virginia Law, 1980-1981: Wills, Trusts, and Estates, 68 Va. L. Rev.525 (1981).
3Id.at 521, 527.
4Legislative Information System, http://leg1.state.va.us (last visited Mar. 12, 2008).
5WILLIAMM. MCGOVERN, JR. & SHELDONF. KURTZ, WILLS, TRUSTSANDESTATES68 AT70-1 (2d ed. 2001)(1987).
6Johnson, supra note 2.
7MCGOVERN& KURTZ, supra note 5, at 68, 71.
8Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U.Cin. L. Rev. 803, 844-45 (1993) (citing In re Duncan’s Estate, 246 P.2d 445, 447-48 (Wash. 1952)).
9Richard Lewis Brown, Undeserving Heirs? The Case of the‘Terminated’ Parent, 40 U. Rich. L. Rev. 547, 558 (2006).
10MCGOVERN& KURTZ, supra note 5, at 70-4.
11Brown, supra note 9, at 559.
12MCGOVERN& KURTZ, supra note 5, at 70-1.
13Id. at 71-3.
14Id. at 73-4.
15Brown, supra note 9, at 559.
16Johnson, supra note 2, at 525.
17MCGOVERN& KURTZ, supra note 5, at 70-1.
18Ward v. Ward, 174 Va. 331, 334-35 (1940).
20MCGOVERN& KURTZ, supra note 5, at 70 (citing Va.Code § 55-403). Id. at 526.
21Johnson, supra note 2, at 526.
23Id. (citing John W. Wade, Acquisition of Property by Willfully Killing Another – A Statutory Solution, 49 Harv. L. Rev. 715 (1936)).
24Va. Code Ann. §§ 55-403 to 55-411 (1981).
26Va. Code Ann. § 55-414 (1981).
27Johnson, supra note 2, at 527.
28Va. Code Ann. § 55-401 to 55-415 (1981) (sections amended: § 55-401 (1987); § 55-403 (1990); § 55-405 (1992); § 55-406 (1992); § 55-414 (1994) 55-415 (2007)).
29Va. Code Ann. § 55-401 (1987).
30Johnson, supra note 2, at 527.
31Sandhya Somashekhar, Fairfax Lawmaker Aims to Close Slayer Statute Loophole, THEWASHINGTONPOST, Jan. 20, 2008, at C5.
34S.B. 450, 2008 Gen. Assem., Reg. Sess. (Va. 2008).
35Somashekhar, supra note 31.
36Interview with J. Rodney Johnson, Professor Emeritus, University of Richmond School of Law, in Richmond, Va. (Mar. 4, 2008).
37Candace Rondeaux, Jury Hears of Fight Between Marshal, Wife, THE WASHINGTON POST, July 12, 2006, at B5.
39Erika Jacobson, U.S. Marshal Trial Opens, CONNECTIONS NEWSPAPERS, July 14, 2006, at http://www.connectionnewspapers.com/article.asp?archive=true&article=64413&paper=67&cat=104
. 40Candace Rondeaux, Ashburn Man Found Guilty of Manslaughter, THE WASHINGTON POST, July 19, 2006, at B5.
42Boston Mutual Life Ins. Co. v. Ludwig, No. 1:06CV1072 (E.D.Va.May 10, 2007).
45Somashekhar, supra note 31.
49H.B. 949, supra note 9.
50David Ress, Son Gets 12 Months for Killing his Father, RICHMOND TIMES-DISPATCH, Jan. 17, 2008, at http://www.inrich.com/cva/ric/search.apx.-content-articles-RTD-2008-01-17-0207.html
54 Somashekhar, supra note 31.
55 Ress, supranote 49.
56 Somashekhar, supra note 31.
59 Legislative Information System, supra note 4.
60 Interview with J. Rodney Johnson, supra note 35.
62 Legislative Information System, supra note 4.
64 Legislative Information System, supra note 4.