You've Got Questions

We've Got Answers.

 

O.C.G.A. 53-1-5 (FULL TEXT AS OF AUGUST 2021)

 

 

O.C.G.A. 53-1-5

Forfeiture of rights by individual who kills, conspires to kill, or procures the killing of another

 

(a) An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent's estate and to serve as a personal representative or trustee of the decedent's estate or any trust created by the decedent. For purposes of this Code section, the killing or conspiring to kill or procuring another to kill is felonious and intentional if the killing would constitute murder or felony murder or voluntary manslaughter under the laws of this state.


(b) An individual who forfeits the right to take an interest from a decedent's estate by virtue of this Code section forfeits the right to take any interest such individual would otherwise take at the decedent's death by intestacy, year's support, will, deed, power of appointment, or by any other conveyance duly executed during life by the decedent and is treated as having predeceased the decedent for purposes of determining the distribution of the decedent's property and of appointing personal representatives or trustees.


(c) This Code section shall have no effect on the rights of the descendants of the individual who forfeits the right to take from the decedent's estate; provided, however, that if the descendants are taking by intestacy in place of the individual who forfeits, the descendants may take only that share of the decedent's estate to which the individual who forfeits would have been entitled. The provisions of Code Section 53-4-64 shall not apply with respect to the descendants of the individual who forfeits the right to take from the decedent's estate unless those descendants are also descendants of the decedent.


(d) A final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.


Credits
Laws 1996, p. 504, § 10.

 

Editors' Notes
 

COMMENT


This 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.

(Back to Top)

1)  What is the slayer statute in Georgia?

 

The “slayer statute” is informal name given to the statute that, in general, precludes a murderer from profiting from their actions through the victim’s estate. 

 

The purpose of this statute is a legislative proclamation to deprive both the murderer and his heirs from taking any property of their victim as a result of their death.

 

There was no common law right to disinherit a murderer.  That’s because the laws of inheritance are all legislative devices that must be strictly applied.  So, when the issue was first addressed in 1947 by Georgia’s Supreme Court, the court refused to disinherit a murderous spouse because the statutes did not allow for it.

 

The current version of the slayer statute is found in O.C.G.A. § 53-1-5.

 

References:

O.C.G.A. § 53-1-5

Crumley v. Hall, 202 Ga. 588, 43 S.E.2d 646 (1947)

Moore v. Moore, 231 Ga. 232, 235(2), 201 S.E.2d 133 (1973)

Willis v. Frazier, 128 Ga.App. 748, 197 S.E.2d 830 (1973)

Keith v. Johnson, 211 Ga. App. 678, 440 S.E.2d 230, (1993)

(Back to Top)

2)  When does the slayer statute apply?

 

The slayer statute applies when someone “feloniously and intentionally” kills another individual.

 

But, it can also apply in different scenarios.  For instance, if someone “conspires to kill” or “procures the killing” of another person, then the statute also applies. 

 

The statute clarifies that these qualifications apply when the killing could constitute either a (1) murder, (2) felony murder, or (3) voluntary manslaughter under the criminal laws of Georgia.

 

This means that the murder does not need to be premeditated nor be accompanied by malice.

References:

 

O.C.G.A. § 53-1-5(a)

Keith v. Johnson, 211 Ga. App. 678, 440 S.E.2d 230, (1993)

Stephens v. Adkins, 226 Ga. App. 648, 487 S.E.2d 440 (1997)

(Back to Top)

3)  What does the slayer statute do, specifically?

 

Generally speaking, the slayer statute prevents a murderer from profiting from their actions.

 

The slayer statute specifically defines the rights that are lost. 

 

Specifically, the murderer “forfeits the right to take an interest from the decedent’s estate.”  This means, the murderer loses any right to inherit from their victim’s estate.  This is explained to include any right to inherit via intestacy, year’s support, will, deed, power of appointment, or by any other conveyance.”

 

In short, there’s no loophole for a murderer to jump through to gain any type of inheritance or property right from the deceased victim.

 

The statute also lays out that the murderer forfeits their right “to serve as personal representative or trustee” of their victim’s estate or trust.  This means that the murderer also loses any right to influence has the estate is handled.

 

For instance, in one Georgia case, the dead spouse was killed by her estranged husband’s girlfriend.  There was no evidence to support that the estranged husband did anything to procure or cause his wife’s death.  So, he was entitled to both serve as the personal representative for his deceased wife's estate as well as inherit from her estate.

 

References:

O.C.G.A. § 53-1-5(a) & (b)

In re Est. of Barnett, 348 Ga. App. 366, 823 S.E.2d 55 (2019)

(Back to Top)

4)  What happens to the inheritance of the murderous heir/beneficiary?

If the murderer is an heir/beneficiary of the deceased’s estate, they are treated as if they predeceased the victim.

 

So, if the victim died without a will, their estate will be divided according the statutes governing descent and distribution.  Except, Georgia statutes specifically state that the murderer’s heirs do not inherit either, unless they are also descendants of the victim.

 

If the victim died with a last will and testament, their estate will be divided according to the terms of the will, presuming the murderer was due to inherit under the will.

 

 

References:

O.C.G.A. 53-1-5(b) & (c)

O.C.G.A. 53-4-64(c)

(Back to Top)

 
 

5)  Is a criminal conviction required for the slayer statute to apply?

No, a criminal conviction for murder is not required to for the slayer statute to apply.

 

In other words, a civil court has authority to find that a purported defendant-murderer is barred from profiting or inheriting from their victim’s death.

 

Infact, even if a criminal jury finds that the defendant is not guilty of causing the victim’s death, this is not necessary binding on whether the slayer statute effects the purported defendant’s murder in a civil case.  That’s because the criminal charge may be different than what the statute allows (i.e. a charge for murder when the lesser standard of voluntary manslaughter can also apply), the evidence may be different, and the standard of proof is different.

 

However, this doesn’t make it any easier to prove.  The burden of proof sets a high bar.  In Georgia civil courts, it must be proven by “clear and convincing evidence” that the purported defendant-murderer committed a felonious and intentional killing.

 

References:

 

Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009)

Stephens v. Adkins, 226 Ga. App. 648, 487 S.E.2d 440 (1997)

(Back to Top)

6)  Is an alleged murdering spouse allowed to use marital money to pay for their criminal defense?

 

Yes and no – this answer is going to be very fact dependent.

 

This issue arises when one spouse murders the other spouse.  There becomes a question of what marital assets belong to the deceased spouse’s estate.

 

First, the deceased spouse’s estate administrator must be able to show that the money is a marital asset or that it belonged to the husband, individually.  At most, it must be proven that the money did not belong to the wife, individually.  The estate has no claim to money or assets that belong to the wife, individually.

 

Even if this is proven, there are still hurdles to overcome.  Presuming the murdering spouse is guilty of the crime, he or she does not forfeit their title in marital assets until guilt is conclusively established.

 

So, if you are concerned that a suspected murderer is going to consume and/or exhaust the victim’s estate, you’d have to resort to other legal remedies, such  as bringing an equitable action for a caveat to the will, injunctive relief, or other equitable remedy.

 

References:

O.C.G.A. § 23-2-91

Levenson v. Word, 286 Ga. 114, 686 S.E.2d 236 (2009)

Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949)

(Back to Top)

7)  Can a beneficiary who obtains a DNR (Do not Resuscitate) order still inherit from the deceased’s estate?

 

A beneficiary who procures a DNR order is not considered to have “procured the death” of the decedent, if they died due to no resuscitation efforts being made by medical professionals.

 

This was a novel theory that the family of a decedent raised when their loved one lost their life. 

 

The beneficiaries were neighboring friends and caretakers when the injured victim was hospitalized, and they only held a general power of attorney.  The court held it was the sole responsibility of the attending physician to issue a DNR order, so the neighboring friends could not have “procured” the victim’s death if the DNR order was improperly issued.

 

References:

 

Edwards v. Shumate, 266 Ga. 374, 468 S.E.2d 23 (1996)

(Back to Top)

FREE CASE
EVALUATION

Thanks for submitting!