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When It Comes to Estate Planning and Probate, You Can’t Get Away With Murder

On Behalf of | Nov 17, 2014 | Estate Planning, Probate

This week we turn our attention to the latest Shonda Rhimes dramatic legal thriller, How To Get Away With Murder. Now, regardless of what you may think of the attention grabbing sex scenes strategically placed throughout every episode of this show, the underlying plot is riveting. (The scenes are so racy they made it to the NY Times: Racy Gay Scenes in ‘How to Get Away With Murder’ Draw a Following .) I mean, who really did kill Sam? We have our own theories, but we won’t spoil the inevitable Friday morning quarterbacking that the show inspires. (There’s even a twitter hashtag: #whokilledsam)

In case you are not caught up on the latest drama in Shondaland, How To Get Away With Murder stars the wonderful Viola Davis (yes, we’re big fans!) as Annalise Keating, a star criminal defense attorney who is also a criminal law professor. The main criminal case of the show involves the murder of a young female college student who inconveniently also happens to be the mistress of Annalise’s husband, a psychology professor at the college. Our bordering-on-the-obsessive interest in this show got us thinking about the implications of being charged with murder and inheritance laws in the state of California.

Now we do not in any way think any of you will ever need to know this. But, just in case, read on. Remember Sam Sheppard? He was the Cleveland doctor who was charged with murdering his wife but insisted all along an intruder had done it.  (Incidentally, his story is believed to be the basis of the television show and movie, ‘The Fugitive’.) Turns out that Mr. Sheppard was innocent after all (if you believe in jury verdicts.)

You should know that under the California Probate Code, a person who ‘feloniously and intentionally’ kills someone is not entitled to inherit anything from the victim’s will or through intestate succession (which is what happens when you don’t have a will.) In case you thought there may be a way around that through life insurance policies, you are out of luck.  Killers cannot be the beneficiaries of life insurance policies of the victim.

Now there’s really one big loophole to be addressed. What if you aren’t convicted of the murder in a criminal court? Unfortunately for the hypothetical murderer, the California Probate Code addresses this as well. (Fascinating reading, the Probate Code.  Check it out for yourself: .) In the absence of a final judgment of conviction for murder, the court may determine by a preponderance of the evidence that the killing was felonious and intentional.  Here’s the rub – a preponderance of the evidence is a much lower proof threshold than ‘beyond a reasonable doubt.’ Any first year law student (or avid viewer of “Law and Order”) will tell you the same.

The most famous case involving this section of the Probate Code is the infamous Scott Peterson trial ( ) Peterson was charged with murdering his wife. His insurance company refused to pay life insurance policy benefits on his wife’s policy to Peterson. The company cited the probate code we referenced above in their denial. Peterson appealed both his criminal and civil judgments but the insurer was under pressure to distribute the policy benefits within a certain amount of time. It was quite a pickle. Ultimately, the case was decided by the Fifth District Court of Appeals and Peterson was barred from receiving any insurance proceeds.

It’s all very interesting in a macabre kind of way. But it’s useful to know in case you are planning on getting away with murder in a criminal court, you still have a civil trial ahead of you. And your chances probably aren’t good. Annalise Keating would surely agree.