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Relatives who assist suicide can inherit

Assisting a relative in committing suicide is not a bar to recovering under his will.

The relatives in the case deny that they assisted a suicide, and no charges were ever brought alleging that they did. But the Wisconsin Court of Appeals on Sept. 25 agreed with their argument that, even if they did do so, sec. 854.14 does not bar them from inheriting.

Edward Schunk died from a self-inflicted shotgun wound. At the time, he was terminally ill, and lived with his wife, Linda, and their daughter, Megan.

Edward also had six older children who are not Linda’s children.

One of the older children filed a demand for formal probate proceedings on the issue of whether Linda and Megan assisted Edward’s suicide, and thus were barred from inheriting.

Clark County Circuit Court Judge Jon M. Counsell granted summary judgment in favor of Linda and Megan, concluding that, even assuming the objectors’ evidence and interpretation of it were true — they assisted the suicide -– Linda and Megan could still recover.

Schunk’s older children appealed, but the Court of Appeals affirmed in an opinion by Judge Margaret J. Vergeront.

At issue was sec. 854.14, which provides, in relevant part, that the “unlawful and intentional killing” of the decedent revokes any provision in a will that grants property to the “killer.”

To resolve the issue, the court focused on the meaning of the word, “kill,” which it defined as “to deprive of life.” The court concluded that definition did not include assisted suicide.

The court reasoned, “A person who assists another in voluntarily and intentionally taking his or her own life is plainly not depriving the other of life. As the assumed facts in this case illustrate, providing Edward with a loaded shotgun did not deprive him of his life: he deprived himself of life by shooting himself with the shotgun. ‘Killing’ is not commonly used to describe assisting another to commit suicide.”

The objectors noted that sec. 940.12 makes it a felony to intentionally assist suicide, but the court found the statute irrelevant.

The court concluded, “If, as we have concluded, assisting another to commit suicide is not ‘killing’ another, it does not become so because the conduct is unlawful and intentional.”

Analysis

The court treats “killing” as having an unambiguous plain meaning, which is a dubious construction, making the case a good candidate for review in the Supreme Court.

However, the court’s ultimate holding is the correct one; even treating “killing” as ambiguous, and looking at legislative history, the result is the same –- “killing” does not include assisted suicide.

While the meaning of “killing” may not be plain, the source for the term is -– the Uniform Probate Code.

The statute is modeled on UPC 2-803, which repeatedly uses the language, “feloniously and intentionally kill,” and “felonious and intentional killing.”

For whatever reason, the Wisconsin Legislature substituted “unlawfully” for “feloniously,” but it left “killing” intact.

The title of sec. 2-803 is “Effect of HOMICIDE on Intestate Succession, Wills, Trusts, Joint Assets, Life Insurance, and Beneficiary Designations (emphasis added).”

Thus, it is reasonable to assume that “killing” in UPC 2-803, and sec. 854.14 alike, means “homicide.”

Unless “homicide” includes “assisted suicide” -– which it does not, either at common law or within the Wisconsin statutes -– then “killing,” as that term is used in sec. 854.14, should not include it either.

Furthermore, interpreting “killing” to include “assisted suicide” would not further the goal of the statute. The statute exists because society presumes that a homicide victim would want his murderer disinherited.

No similar presumption attaches in an assisted suicide situation; on the contrary, the person one trusts to assist in suicide is likely to be at or very near the top of the list of people the decedent wants to inherit.

Accordingly, even if the Supreme Court were to accept review in this case, and conclude that “killing” is ambiguous, the end result should be the same.

For a scholarly treatment of more policy reasons why assisted suicide should not invoke application of “slayer statutes,” see Jeffrey Sherman, “Mercy Killing and the Right to Inherit,” 61 U.Cin.L.Rev. 803 (1993).

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