by Hon. C. Raymond Radigan and Adam J. Gottlieb, Esq.
Under Riggs vs. Palmer 115 N.Y. 506, 511 (1889), it is well established that one cannot profit from one’s own wrongdoing. Thus a legatee who murders a testator may not profit and receive a legacy under the victim’s Will. A beneficiary of an insurance policy who wrongfully causes the death of the insured may not receive the proceeds thereof. If one wrongfully causes the demise of a depositor and is the beneficiary of a totten trust (an “in trust for” account) created by the depositor, he or she may not claim the proceeds of that bank account. The same is true concerning stock similarly held if he or she wrongfully causes the death of the stockholder.
An issue arises as to whether one who causes the wrongful death of another forfeits his or her own interest in assets held as joint tenants with the victim of the wrongdoer’s wrongful death. Does a joint tenant forfeit his or her entire interest in the property, or is he or she entitled to any interest in the property because he or she invested and/or was vested in the asset on his or her own?
If one has incidences of ownership in an insurance policy and is the beneficiary thereof, does he or she have any monetary interest in the policy if he or she wrongfully caused the death of the insured? If spouses owned real property, tenants by the entirety, does the survivor who caused the wrongful death of his or her spouse still have a vested interest in any portion of the property? In other words, does one who has a vested interest in property prior to the death of the victim still have an interest in the asset after the death of the other party in interest caused as the result of the wrongdoing of the survivor? Does the survivor lose not only his or her rights as a survivor but also any vested rights that he or she may have had in the property prior to the death?
Matter of Covert, 97 N.Y.2d 68, 74 (2001), provides that a bequest is nullified where the beneficiary wrongfully causes the death of the decedent and contingent legatees receive the testamentary bequest. Individual retirement accounts and life insurance policies pass to alternate beneficiaries. However, as to joint bank accounts there is a difference of opinion within our judicial departments as to whether or not there is a partial or complete forfeiture of the survivor’s interest in the joint account.
In Matter of Mathew, 270 A.D.2d 416 (2d Dept. 2000), a reverse discovery proceeding was commenced pursuant to SCPA §2105 by a survivor wrongdoer regarding the proceeds from the sale of real property. The Surrogate found that the survivor forfeited all interest in the property and was not entitled to any of the sale’s proceeds. The Appellate Division reversed and held that the survivor was entitled to the value of a life estate in one-half of the proceeds of the sale and the Surrogate was directed to hold a hearing to determine the value of that interest. In Mathew, a husband killed his wife and following a jury trial was convicted of murder in the second degree. Pending trial the property held as tenants by the entirety was sold and the proceeds placed in an escrow account. The surviving spouse commenced a reverse discovery proceeding to compel his daughter to release a share of the proceeds to him. She refused, contending that her father forfeited all of his rights to the property. The Appellate Court found that one who wrongfully takes the life of another is not permitted to profit therefrom and is not entitled to succeed to sole ownership of real property as surviving tenant by the entirety. However, Civil Rights Law §79-b which provides that a conviction of a person of any crime does not work as a forfeiture of any property, real or personal, or any right or interest therein, individually owned. Therefore the slayer does not forfeit his or her own undivided interest in the property which the couple held as tenants by the entirety. His property rights cannot be diminished by reason of his criminal act and therefore is entitled to the computed value of one-half of the property or proceeds of the sale.
Matter of Pikul, 192 A.D.2d 259 (1st Dept.1993) and Bierbrauer v. Moran, 244 A.D. 87 (4th Dept. 1935), unlike In re Mathew, holds that a killer forfeits all rights in the real property. In Pikul, a wife was slain by a husband and jury found him guilty of murder. He died before he was sentenced and his conviction was abated by operation of law. The temporary administrators of the wife’s estate sought a declaration that the husband forfeited any right to succeed to the property of his spouse by reason of his commission of murder, and the husband was not entitled to inherit the estate under to the spouse’s will. The Court held that the spouse’s property was to be divided between the couple’s two children, and the surviving spouse forfeited all right to jointly held assets.
In Citibank, N.A. v. Goldberg, 178 Misc.2d 287(N.Y. Supreme Court, Nassau 1998), the Court held that where a husband killed his wife, he voluntarily repudiated his interest in real property that he formerly held with his wife as tenants as the entirety. Therefore any surplus remaining after foreclosure sale should be paid to the wife’s estate. In Citibank the Court noted that the Civil Rights Law §79-b provisions have been in effect and unchanged since the Penal Code of 1881. In Mathew the Appellate Division referred to the Citibank case and found it to be inconsistent with the prior determinations of the Appellate Division Second Dept and therefore effectively overruled Citibank.
In Bierbrauer v. Moran, 244 A.D. 87, 279 N.Y.S. 176 (4th Dept.1935), a husband murdered his wife and then committed suicide. The Trial Court found that the husband survived the spouse. The Appellate Division found that that finding was not supported by the weight of evidence and the Court found that there was no degree of certainty under the circumstances presented to determine the order of death of the husband and spouse. Therefore their deaths were treated as simultaneous and the willful murder of the wife by the husband determines the devolution of the property of the decedents. If the husband killed the wife, the jointly held property should pass to the wife’s heirs as a result of the husband’s wrongdoing. Because of the husband’s wrongdoing, the Court found that all of the assets held jointly were to pass to the surviving spouse. There was no mention of law similar to §79b of the Civil Rights Law.
In re Guldbrandsen, Misc 3 1123 237 April 2007, the Surrogate found he was
bound by In re Mathew in that it was a determination by the Appellate Division of his judicial department. Accordingly, the Surrogate held that one who causes the death of another is precluded from survivorship rights, but nonetheless does not forfeit rights vested previous to the commission of the wrongdoing and therefore, the survivor was entitled to the commuted value of a life estate in one-half of the property, or if the property is sold, in the commuted value of one-half of the sale proceeds of a life interest therein.
The Surrogate noted that In re Mathew is at odds with In re Pikul and
Bierbrauer v. Moran. However, as indicated, neither of those decisions referred to the Civil Rights Law §79b or a like statute and it would appear when that statutory provision is taken into consideration, the outcome of facts similar to that set forth in Guldbrandsen should be decided similarly in all judicial departments. In any event, the question is, if the survivor does retain any financial interest in the assets, whether those assets could nonetheless be forfeited by a wrongful death action against the survivor by the estate of the one whose death he or she wrongfully caused. The Court noted that the fiduciary retained an option to pursue a wrongful death action against the survivor pursuant to EPTL §5-4.1 for the benefit of the decedent’s surviving distributees who suffered a pecuniary loss as a result of the wrongdoer’s actions and a claim for personal injury pursuant to EPTL §11-3.2 for the benefit of the decedent’s estate by way of a survival action against the wrongdoer for the injuries inflicted upon the deceased. These combined proceedings pursuant to EPTL §11-3.3 (b) could be commenced against the wrongdoer.
To insure that the recovery would be satisfied, the fiduciary, if he or she is
holding the assets in question, should seek permission of the Surrogate to continue to hold those assets in escrow until a determination is made as to whether those assets could be used to satisfy any recovery in the wrongful death and/or survival action. If the fiduciary does not have possession of the assets, he or she should seek from the Surrogate’s Court a restraining order against the wrongdoer, or anyone else who has the assets, from disposing of them until a determination can be made as to whether or not those assets should be used to satisfy any recovery obtained through the wrongful death and/or survival action proceedings. Such actions will insure that the assets will not be disposed of and thus not be available to satisfy any recovery.
In the Guldbrandsen decision, Surrogate Pagones noted that a wrongful death action must be commenced within two years of the decedent’s death citing EPTL §5-4.1(1). However since the event that caused the decedent’s death resulted in a criminal action against the spouse, the statute of limitations must toll for one year following the resolution of the criminal action. This is so notwithstanding that the time in which to commence such an action already expired or has less than one year remaining. EPTL §5-4.1(2). The Surrogate held that the Executrix would be able to use the criminal judgment of conviction as proof of acts asserted in the civil court under the collateral estoppel doctrine to recover all of the jointly owned assets, and would not require a new hearing as to the right to recover.
Accordingly, even though a wrongdoer may be entitled to the benefit of the assets on a limited basis with respect to his or her life interest in the vested portion of the assets, that right could nonetheless be forfeited and a recovery obtained in an action for the wrongful death and/or personal injury.
*C. Raymond Radigan is a former Surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek, P.C. He also is chairman of the Advisory Committee to the Legislature on Estates, Powers and Trusts Law and the Surrogate’s Court Procedure Act.
Adam J. Gottlieb is a Senior Associate Attorney at Ruskin Moscou Faltischek, P.C. and a member of the Trusts and Estates Department.