The fiancée, Doreen Noone, claims that the two lived together for eight months during the 1990s and that Mr. Prior paid most of her bills.  She also claims that she spent four or five nights a week with him in his parents’ basement, where he later moved, returning to her own parents’ house only when he was on duty at the firehouse.  Prior’s parent flatly deny her account, insisting that none of their boys were allowed to “have girls overnight” in the house.  Although they concede that their son had paid approximately $7,000 of Noone’s bills over a three-year period, the Priors contend that the couple did not share budgeting.  “All that happened was they had plans for a wedding, and those plans were interrupted,” they say.  Mr. Prior’s best friend, Sgt. Edward Wheeler (who is now married to Ms. Noone), supports Ms. Noone’s version of the relationship.

Many people who hear about this case will conclude that the legislature made a mistake with its decision to include “domestic partners” in the list of potential pension recipients along with parents and spouses.  People who have this response may disapprove of co-habiting arrangements as too immoral, informal, or inappropriate to deserve statutory protection; or they may simply disapprove of relatively fuzzy terms in a statute.  After all, we can establish who is a parent or spouse of a decedent by looking at public records, but the determination of who is a domestic partner will require case-by-case fact-finding by the court.  In an age of over-crowded dockets, a bright-line rule has a lot of appeal.

I want to offer a different take on this, though.  Inheritance laws are meant to carry out the probable intent of the average decedent, and where the law does not accomplish this it is often because the law has not caught up with social realities.  Fifty years ago, many if not most state intestate laws gave a substantial proportion of a decedent’s intestate estate to his descendants, with a correspondingly lesser sum going to the surviving spouse.   Today, most statutes give most or all of the estate to the surviving spouse as long as any descendants were descendants of the marriage.  Why the change?  Surveys and ordinary experience of estate planners showed that the spousal relationship has become more and more important in American society, and most testators elect to give most or all of the estate to their surviving spouses unless there are children from previous marriages.  The New York statute’s inclusion of domestic partners in the group of persons eligible to collect the 9/11 police and fire pensions acknowledges the current social reality that a significant percentage of couples, particularly those in the age group of many of the 9/11 casualties, live together before or in lieu of marriage.  Often these relationships are serious and stable, and often they include children.  To the participants, they represent family relationships of the utmost importance.  In effect, the New York Legislature wanted to allow the courts to make individual determinations about what the deceased police and firefighters would have wanted to happen to their pensions, given that for many the relationship with their domestic partner was the most important relationship in their lives.

Sadly, what has gone wrong in the Prior case is an older story: since the versions are so contradictory, it is apparent that at least one party is not telling the whole truth.  There is a lot of money at stake here, but I suspect that, as is usual in estate disputes, each party is trying to hang onto a piece of the decedent by claiming his property.  Despite the fact that the individualized fact-finding required by the statute gives the parties more of an opportunity to lie and thus makes the court’s job harder, I believe that the individual fact-finding also makes it more likely that the truth of the decedent’s intent will be discovered and followed.

While the article is particularly critical of health care professionals for falling into the elderspeak trap, it also cites examples from other settings, including stores and restaurants.  Lawyers are not singled out, but there are lessons for us here as well. 

I came across this article as I was prepping for my annual Trusts & Estates class where we discuss advance health care directives, and where we begin to talk about utilizing devices such as revocable trusts to help clients protect themselves in the event of future incapacity.  Not surprisingly, the casebook is full of examples of elderly patients with various forms of dementia or other disabilities.  Often, these elders are supported, for good or bad, by younger more able relatives, and at some point a lawyer is brought into the mix to assist with planning documents.  It occurs to me that reading all of these materials may well be conducive to subconsciously attributing declines in functioning to all persons above a certain age.  This is especially true where the average age of my student readers is probably about 25, an age where (I dimly recall) even 40 seemed old. 

Of course, it is our job as lawyers to use legal remedies such as advance health care directives, wills, trusts, or powers of attorney to protect the elderly clients and their families and to soften at least some of the harsh realities brought about by declines in health.  Our students and young lawyers need to learn how to do this.  But the New York Times article was a timely reminder to me that we as lawyers must also take care to respect elderly clients as individuals with dignity, and we should avoid slipping into the condescending elderspeak that is so easily rationalized as being kind or reassuring.

The article also serves to remind me as a teacher that young lawyers, in a misguided effort to be both friendly and authoritative, might find it easy to slip into elderspeak, and that it is part of my duty as a teacher to warn them against it.

The court ruled in favor of Linda and Megan in a decision that did not rule on whether or not their conduct (or alleged lack of vigilance) constituted assisted suicide. Instead, the court based its ruling on its conclusion that the statutory language “unlawful and intentional killing” does not include conduct like the conduct of Linda and Megan. The court invoked the plain meaning rule, and pointed out that “kill” means “to deprive of life” while “suicide” means “to put (oneself) to death: kill.” The court opined that even if Linda and Megan had (as the opponents of the will claimed) given the decedent a gun, driven him to his cabin, helped him inside, and left him alone, they still did not kill him, because they did not commit the act that ended his life. According to the Milwaukee Journal-Sentinel, some are now concerned that the decision might give a financial motive to people to provide the means for others to kill themselves. Although I agree that avoidance of any kind of suicide is a good thing, I believe that the Court of Appeals was correct in its decision, and that its interpretation does not provide any motivation for wrongful behavior by folks hoping to inherit.

The situation where an expectant heir or legatee murders someone in order to inherit sooner is a cause for valid concern, and there has long been a common law rule against such actors profiting from their evil deeds. The common law rule evolved slowly, though, and there were some real loopholes both in the cases and in the early statues, which tended to bar inheritance from someone who had “murdered” the decedent. Did second-degree murder count? Manslaughter? Juvenile conviction? What if it was clear that the actor killed the decedent, but the actor was found not guilty by reason of insanity? In terms of the early cases and statues, second-degree murder might bar inheritance, but the other situations likely would not. Hence states like Wisconsin amended their statutes to bar the unlawful and intentional killing of a person by a potential inheritor, but allowing the probate court to determine under a preponderance of the evidence standard whether the killing was unlawful and intentional for purposes of the statute. The statute adds two exceptions: 1) “The court finds that under the factual situation created by the killing, the decedent’s wishes would best be carried out by means of another disposition of the property,” and 2) “The decedent provided in his or her will, by specific reference to this section, that this section does not apply.”

So, does the recent Schunk case coupled with the statutory exceptions give the green light to unscrupulous relatives who will now feel free to urge their loved ones to speed up the inheritance process with suicide? I don’t think so, and here’s why:

The Wisconsin statute, and the cases which have both preceded and accompanied it, have sought to prevent wrongdoers from profiting from intentional acts of destruction directed towards the testator, i.e., “killing.” However, the law distinguished between intentional and unlawful killing and other behavior which could be better described as negligent, ignorant, accidental, or just less than ideal. Why not clamp down on that sort of behavior as well? I can see at least two important reasons. In the first place, penalizing intentional killing certainly removes a prime motivation for that killing. There is no point in killing someone for an inheritance if the act of killing eliminates the inheritance. But it makes less sense to punish unintentional behavior because deterrents don’t work as well when behavior is unintended. Of course, you could argue that punishing unintentional behavior will motivate possible inheritors to be more careful. But how careful would they have to be to avoid losing their inheritances? This brings us to the second reason for the rule: just as we don’t want to allow potential inheritors to retain a method of acting wrongfully in order to speed up their inheritances, we don’t want to give other potential inheritors a new array of grounds upon which they can contest a will.

If we ban inheritance by people who arguably failed to take some step that might have prevented the death of the testator on the grounds that this failure amounted to “killing,” then where will it end? The children from Edward Schunk’s first marriage are apparently claiming that if Linda and Megan had taken Edward’s gun away and prevented him from leaving for his cabin, he would not have died. But what if they had taken away his gun and his car keys? He could have hung himself with his belt or a bed sheet, consumed toxic substances, or done a myriad of other things leading to the same result. We all know that it is almost impossible to prevent a truly determined person from committing suicide. Classifying failure to prevent a suicide as assisted suicide and then equating that with unlawful and intentional killing will not prevent any deaths, but is very likely to encourage a will contest by any heir who thinks he should have inherited more from a person who committed suicide.

Moreover, the exceptions mentioned above do not condone assisted suicide, but rather allow the court to discern whether any contested behavior was the sort of unlawful and intentional killing that the law envisions. They also allow for the fact that the decedent might not want an intended beneficiary to lose his inheritance because he in some way went along with the decedent’s desire for an earlier death. Without this exception, any disappointed heir could accuse a grieving spouse of “killing” in any situation where he or she went along with any behavior, medical treatment (or lack thereof), or anything else that could conceivably have shortened the decedent’s life. For example, if a spouse goes along with a dying mate’s decision to forgo further chemo, receive more morphine, or request a Do Not Resuscitate Order, disgruntled heirs could have a field day in court. The law clearly does not favor such an expansive interpretation of the statutory language, and giving this opening to disappointed heirs would be, in my opinion, a very bad policy.