Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge.

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.