(Code 1981, §53-1-5, enacted by Ga. L. 1996, p. 504, § 10.)
Cross references.- Homicide generally, § 16-5-1 et seq.
Denial of right of person who commits murder or voluntary manslaughter to receive benefits from insurance policy on life of victim, § 33-25-13.
Law reviews.- For article, "The Time Gap in Wills: Problems Under Georgia's Lapse Statutes," see 6 Ga. L. Rev. 268 (1972). For article discussing effect of homicide on succession by the slayer, and devolution of his share, see 10 Ga. L. Rev. 447 (1976). For annual survey of law on wills, trusts, guardianships, and fiduciary administration, see 62 Mercer L. Rev. 365 (2010). For article, "Killers Shouldn't Inherit from their Victims - Or Should They?," see 48 Ga. L. Rev. 145 (2013). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014). For note, "Not Just For Kids: Why Georgia's Statutory Disinheritance of Deadbeat Parents Should Extend to Intestate Adults," see 43 Ga. L. Rev. 867 (2009). For note, "Vesting Title in a Murderer: Where is the Equity in the Georgia Supreme Court's Interpretation of the Slayer Statute in Levenson?," see 45 Ga. L. Rev. 877 (2011).
COMMENTThis section modifies former OCGA Sec. 53-4-6. This section expands the forfeiture provisions to apply not only to the killer's right to take a property interest from the decedent but also to serve as a fiduciary of the decedent's estate or any trust created by the decedent. The rule applies only to prevent a killer from receiving benefits from the slain person or serving as a fiduciary and does not affect the distribution of the killer's estate. (See OCGA Sec. 33-25-13, which contains a similar rule relating to the receipt of benefits from a life insurance policy.)
This section applies to situations in which the "killing" is such as would constitute murder, felony murder, or voluntary manslaughter, as described in OCGA Secs. 16-5-1 and 16-5-2. The section does not apply to homicide by vehicle, as defined in OCGA Sec. 40-6-393. The nature of the killing may be established either by a criminal conviction or a guilty plea or, in a civil proceeding, by clear and convincing evidence.
Subsection (b) carries forward the rule of former OCGA Sec. 53-4-6 that the share of the individual who engages in the felonious and intentional killing is distributed as if the killer predeceased the decedent. Additionally, the appointment of personal representatives or trustees will proceed as if the killer had predeceased the decedent.
Subsection (c) clarifies that the descendants of the killer are not precluded from taking from the slain person's estate or serving as personal representative or trustee. However, if the descendants are taking by intestacy in place of the killer, the descendants may not take a greater share of the decedent's estate than the share to which the killer would have been entitled. This subsection prevents unfairness in those circumstances in which the treatment of an individual as having predeceased the decedent would result in a diminution of the shares that other individuals would have received had that individual not been treated as having predeceased the decedent. The following example illustrates the application of this rule: Assume that a decedent who dies intestate is survived by a brother who has three children and by the one child of a predeceased sister. Under Code Sec. 53-2-1, the sister's child takes one-half of the estate and the brother takes one-half of the estate. But if the brother (as well as the sister) had predeceased the decedent, the same statute directs that the four nieces and nephews of the decedent would share the estate equally. Consequently, the sister's child's share would be diminished to one-fourth. The last sentence of subsection (b) avoids that result by providing that, if the brother is treated as having predeceased the decedent because he killed the decedent, the brother's children (who are taking in place of the brother) will only take the one-half interest that the brother would have taken. Subsection (c) also reflects the rule that Code Sec. 53-4-64 (the anti-lapse statute) does not apply in cases in which a beneficiary is treated as having predeceased the testator due to the fact that the beneficiary killed the testator unless the individuals who would take as substitute beneficiaries for their "predeceased" parent are also descendants of the testator.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. L. 1952, p. 288, §§ 1 and 3, Ga. L. 1959, p. 299, § 1, and former O.C.G.A. § 53-4-6 are included in the annotations for this Code section.
Constitutionality.
- The contention that Ga. L. 1959, p. 299, § 1 is void as being in violation of U.S. Const., Art. I, Sec. 10, Cl. 1 which prohibits passage of any bill of attainder or ex post facto law, or because it is a law impairing the obligations of a contract, or that it operates to deprive a murderer of the murderer's property without due process of law, or that the statute is in violation of U.S. Const., amend. 14 which prohibits states from enforcing any law abridging the privileges or immunities of citizens or denying to citizens within its borders the equal protection of the laws and the contention that a conviction in such a case would work corruption of blood or forfeiture of property in violation of Ga. Const. 1976, Art. I, Sec. II, Para. III (now see Ga. Const. 1983, Art. I, Sec. I, Para. XX) are not meritorious. Moore v. Moore, 225 Ga. 340, 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).
Enactment of Ga. L. 1959, p. 299,
§ 1 as valid exercise of legislative power. - Power to enact Ga. L. 1959, p. 299, § 1 was undoubtedly in the General Assembly, inasmuch as the General Assembly possesses the power to provide rules of descent and distribution. Moore v. Moore, 225 Ga. 340, 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).
Purpose of section.
- Primary purpose of statute is to reduce the profits of crime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).
Former O.C.G.A. § 53-4-6 required the slayer's portion of victim's estate pass to alternative beneficiaries when a valid will so provides and alternative beneficiaries, who are not prohibited by law from taking from the victim, are named in the will. Bradley v. Bradley, 213 Ga. App. 68, 443 S.E.2d 863 (1994) (decided under former O.C.G.A. § 53-4-6).
Rights of those who kill by accident or negligence not impaired.
- Statutes that embody the public policy of Georgia of prohibiting wrongdoers from profiting from their crimes, O.C.G.A. §§ 17-14-31,33-25-13, and53-1-5, only prevent those who feloniously and intentionally kill, O.C.G.A. § 53-1-5(a), or those who commit murder or voluntary manslaughter, O.C.G.A. § 33-25-13, from sharing, respectively, in the decedent's estate or insurance policy proceeds; if a public policy may be gleaned from these statutes, it is a policy that prohibits those who commit murder or voluntary manslaughter from profiting from the victim's death, but these statutes do not impair the rights of those who kill by accident or negligence, who kill in self-defense or pursuant to any other legal justification, or who kill while legally insane because simply admitting to having committed a homicide does not make one a wrongdoer under Georgia law. Bruscato v. O'Brien, 307 Ga. App. 452, 705 S.E.2d 275 (2010).
Summary judgment.
- When substantial fact issues existed as to whether an insurance policy provision transferring ownership to the insured was activated in an apparent murder/suicide case, and whether the insured had murdered his wife, the owner of the policy, it was error of the court to grant summary judgment. Bland v. Ussery, 172 Ga. App. 131, 322 S.E.2d 335 (1984) (decided under former O.C.G.A. § 53-4-6).
Cited in Butler v. Hicks, 229 Ga. 72, 189 S.E.2d 416 (1972); Edwards v. Edwards, 136 Ga. App. 668, 222 S.E.2d 169 (1975); Graham v. Youngblood, 256 Ga. 183, 345 S.E.2d 593 (1986); Edwards v. Shumate, 266 Ga. 374, 468 S.E.2d 23 (1996); Rader v. State, 300 Ga. App. 411, 685 S.E.2d 405 (2009); O'Brien v. Bruscato, 289 Ga. 739, 715 S.E.2d 120 (2011).
Applicability
1. In General
Applicability of Ga. L. 1959, p. 299,
§ 1 generally. - Ga. L. 1959, p. 299, § 1 applies if, by the wrongful act of the legatee, the testator dies before the legatee and the legatee by law is treated as having died before the testator. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
Victim does not become heir of murderer.
- After the husband killed his wife and then committed suicide in an apparent murder/suicide, the provision of former O.C.G.A. § 53-4-6 deeming that one who kills another predeceased the victim when determining who inherits the victim's estate did not create a right of the wife's estate to inherit from the husband's estate. Keith v. Johnson, 211 Ga. App. 678, 440 S.E.2d 230 (1993) (decided under former O.C.G.A. § 53-4-6).
Conviction for voluntary manslaughter.
- Son's conviction for voluntary manslaughter of his father did not establish that he acted with malice so as to prevent his inheriting from his father's estate, nor was malice established by a prior decision finding the son ineligible to receive life insurance benefits because of the manslaughter conviction. Stephens v. Adkins, 226 Ga. App. 648, 487 S.E.2d 440 (1997) (decided under former O.C.G.A. § 53-4-6).
Until judicial condemnation proceedings are finalized, property conveyed by the murderer passes good title because, by the clear and unambiguous provisions of its language, O.C.G.A. § 53-1-5(d) requires some form of judicial condemnation to divest a murderer of his or her interests from the murdered decedent's estate, either through a criminal proceeding, i.e., final judgment of conviction or a guilty plea, or through a civil proceeding establishing a felonious and intentional killing by clear and convincing evidence; upon finalization of either of the judicial condemnation proceedings provided for in § 53-1-5(d), the murderer's interest from the decedent's estate is forfeited and that forfeiture then relates back to the moment of the murder, so as to authorize recovery from the murderer of any of that interest he or she previously dispersed. Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).
Legal fees paid by spouse who killed other spouse.
- In an estate administrator's conversion suit against a law firm, the trial court properly granted the law firm summary judgment with regard to the administrator attempting to recover $125,000 in legal fees the decedent's spouse had paid to the law firm as the law firm accepted the fees from the decedent's spouse in good faith since it was not determined until the spouse pled guilty to the homicide that the spouse had killed the decedent. Further, there was no evidence that the spouse did not have title to the money when the money was paid. Levenson v. Word, 294 Ga. App. 104, 668 S.E.2d 763 (2008), aff'd, 286 Ga. 114, 686 S.E.2d 236 (2009).
Court of Appeals did not err in affirming the trial court's order granting defense attorneys and the law firm summary judgment in an administrator's action alleging that the attorneys converted estate property when the attorneys accepted certain sums as payment for their services in representing a decedent's widow after the widow was indicted for the decedent's murder because O.C.G.A. § 53-1-5 did not place possession or an immediate right to possession of the estate property in the administrator at the time the widow dispersed and appellees received the funds in issue; when the widow dispersed the finds, the widow had qualified as executor of the decedent's estate and letters testamentary had been issued to the widow, the widow had not yet pled guilty to the murder charges, no final judgment of conviction had been entered in regard to the criminal indictment, and the widow's felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding. Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009).
No evidence spouse was involved in other spouse's kidnapping and murder.
- In an action to determine whether the decedent's husband forfeited the right to take an interest in the decedent's estate or act as a personal representative, the probate court correctly granted summary judgment to the decedent's husband because there had been no criminal or civil proceeding establishing by clear and convincing evidence that the husband participated in the kidnapping and murder of the decedent. In re Estate of Barnett, 348 Ga. App. 366, 823 S.E.2d 55 (2019).
2. Life Insurance Policies
Applicability of section to life insurance policies.
- Ga. L. 1959, p. 299, § 1 suggests that it refers to heritable property owned by the decedent and properly a part of the decedent's estate. While an insured is the owner of a contract of insurance on the insured's own life, this is a different sort of ownership because the insured cannot, unless the insured elects to turn the policy in for the policy's cash surrender value, make the policy's proceeds available to the insured during the insured's lifetime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).
The legislative scheme under Ga. L. 1959, p. 299, § 1 is clear that unless the insured affirmatively indicates that the estate is intended as beneficiary, the policy proceeds go to the beneficiary as against the claims of creditors or personal representatives of the deceased. This is generally true even when no beneficiary is named in the policy, but a statute indicates for whose benefit the proceeds are to be used in such event. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589, 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).
When insured could have changed beneficiary at any time, Ga. L. 1959, p. 299, § 1 does not prohibit the payment of proceeds from life insurance policies to insured's estate where insured killed the policies' beneficiary and then himself. Willis v. Frazier, 128 Ga. App. 748, 197 S.E.2d 830 (1973) (decided under Ga. L. 1959, p. 299, § 1).
3. Vested Interest
Applicability of section to vested interest.
- When wife already had a vested one-half undivided interest in the property with a remainder estate in the other one-half interest, subject to divestiture only if she predeceased the husband, the wife's interest was not forfeited even though she killed her husband. Moore v. Moore, 231 Ga. 232, 201 S.E.2d 133 (1976) (decided under Ga. L. 1959, p. 299, § 1).
Entitlement of Heirs of Disinherited Heir
Meaning of "other heirs."
- By the term "other heirs" as used in this section, the legislature meant other heirs of the deceased, whether the deceased died intestate or testate. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
If the person killed is intestate and the person killing is an heir at law without issue, Ga. L. 1959, p. 299, § 1 directs that the property the heir would have taken go to all the other heirs of the deceased entitled under the laws of descent and distribution. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
Heirs of disinherited heir may be proper heirs of decedent.
- Legislature explicitly provided that persons capable of inheriting from the deceased under the laws of descent and distribution through a living heir who killed the deceased are to take the property the disinherited heir would have taken. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
Ga. L. 1959, p. 259, § 1 provides that when a legatee kills a testator, the property the legatee would have received under the will shall go to the heirs of the person killed, thereby excluding the heirs of the legatee from sharing in this property unless they be also heirs of the testator. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
If the person killed is testate, the statute directs that the property the person killing would have taken under the will go (1) if the testator named none of the testator's heirs as beneficiaries, to all the persons who would have been the testator's heirs at law under the laws of descent and distribution, excluding the person killing; or (2) if the testator named some of the testator's heirs at law as beneficiaries of the testator's will, to those named beneficiaries. McGhee v. Banks, 115 Ga. App. 155, 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).
RESEARCH REFERENCES
Am. Jur. 2d.
- 23 Am. Jur. 2d, Descent and Distribution, § 41. 79 Am. Jur. 2d, Wills, §§ 154, 155.
C.J.S.- 26A C.J.S., Descent and Distribution, § 47. 954 C.J.S., Wills, § 100, 101.
ALR.
- Constitutionality of statute precluding inheritance by one who killed decedent, 6 A.L.R. 1408.
Disqualification of heir who murdered intestate as affecting rights of others in respect of the intestate estate, 156 A.L.R. 623; 161 A.L.R. 448.
Murder of life tenant by remainderman or reversioner as affecting latter's rights to remainder or reversion, 24 A.L.R.2d 1120.
Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter's right in the property, 42 A.L.R.3d 1116.
Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.