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Estate Planning, Beneficiaries and Prison

By Lane V. Erickson, Idaho Estate Planning Attorney

Our goal as Idaho's premier estate planning law firm is to provide each of our clients with sound counsel and advice concerning every aspect of their estate planning. In the course of doing this, it is not uncommon for a parent to ask questions about how their children will inherit property, money, and assets from them through their estate planning. In the course of these conversations and discussions, occasionally a parent will ask me the question if I leave property or money to a child of mine who is in prison, will they be able to keep it or will the state automatically take it away from them.

When this question comes up we try to learn the circumstances that led to the child being put in prison in the first place. Based upon this, we are able to provide specific answers to each client's question about whether their child in fact can still inherit a portion of their estate while they are in prison.

Our goal is to use our team of knowledgeable, experience, and skilled estate planning attorneys to assist each client with customizing their own personal estate. Our team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of the attorneys on our Premier team of estate planners have assisted hundreds of clients in customizing their own personal estate plans. We are confident that we can answer your questions and help you in every aspect of your estate planning.

When it comes to determining whether your children or other heirs will inherit from you if they are in fact in prison, we always go through a series of questions that help us understand the circumstances. Based upon those particular circumstances we can provide specific answers to you about whether your children or other heirs will be able to inherit from you. Below is a summary of laws that exist in Idaho that may keep your children or other heirs from receiving a part of your estate.

Murder of the Decedent - Idaho's Slayer's Statute

The question of whether someone accused of murder can inherit from the estate of the person who died most recently came up in Idaho through a recent Idaho Supreme Court Case, Hodge v. Waggoner, 2018 Ida. LEXIS 135. According to the Idaho Supreme Court, Idaho's slayer statute, enacted by the Idaho Legislature in 1971 as part of Idaho's adoption of the Uniform Probate Code, provides that "[n]o slayer shall in any way acquire any property or receive any benefit as a result of the death of the decedent[.]" I.C. § 15-2-803(b); see also S.B. 1050, S.L. 1971, ch. 111, § 1.5

As the Legislature further instructed, the slayer statute "shall be construed broadly in order to effect the policy of this state that no person shall be allowed to profit by his own wrong, wherever committed[,]" though it "shall not be considered penal in nature[.]" I.C. § 15-2-803(n); accord United Inv'rs Life Ins. Co. v. Severson, 143 Idaho 628, 633, 151 P.3d 824, 829 (2007) ("The plain language of these subsections reveals the legislative intent that no slayer be allowed to acquire any property or receive any benefit as a result of the willful and unlawful killing of the decedent."); Restatement (First) of Restitution § 187 cmt. a (1937).

The threshold question in each case where the slayer statute is whether the potential heir is a "slayer." "Slayer" means "any person who participates, either as principal or as an accessory before the fact, in the wilful and unlawful killing of any other person." I.C. § 15-2-803(a)(1). Interpreting the slayer statute presents a question of law over which the Idaho Supreme Court exercises free review. See Hayes v. City of Plummer, 159 Idaho 168, 170, 357 P.3d 1276, 1278 (2015).

Under the plain terms of the statute, the slayer must participate in the "wilful and unlawful killing of any other person." I.C. § 15-2-803(a)(1). A criminal homicide conviction is admissible to establish slayer status. See id. § 15-2-803(m); In re Eliasen's Estate, 105 Idaho 234, 242, 668 P.2d 110, 118 (1983). A conviction, however, "is not a mandatory prerequisite to application of the slayer's statute." In re Eliasen's Estate, 105 Idaho at 242, 668 P.2d at 118. Indeed, "a person may not even be tried but nevertheless may still be shown in a civil action to have been a willful slayer.

Proof in a civil case need only be by a preponderance of the evidence." Id. As a result, when a slayer-status finding is appealed, it will only be set aside if the Idaho Supreme Court concludes it is clearly erroneous. See, e.g., Visser v. Auto Alley, LLC, 162 Idaho 1, 3, 393 P.3d 1027, 1029 (2017) ("A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous." (quoting Pinnacle Eng'rs, Inc. v. Heron Brook, LLC, 139 Idaho 756, 758, 86 P.3d 470, 472 (2004))).

Thus, according to the Hodge case, a person need not even be convicted of murder and sentenced to a term in prison in order to have the Idaho slayer statue apply and prohibit that person from being an actual heir of the decedent's estate.

Victims of Crimes and Restitution Orders

In addition to Idaho's slayer statutes there are other statutes and laws that could prevent your children or other heirs from receiving a portion of your estate after you pass away. One of them has to do with restitution orders that are granted in favor of victims of certain crimes. As an example, many years ago I worked on a case in favor of a business owner who discovered an employee who had embezzled money from his business. Through the course of the criminal and civil litigation which followed a restitution order was entered by the court for several hundred thousand dollars. This restitution order required the convicted employee to pay money back to the victim business owner.

In this example, because of the existing restitution order, if the convicted employee were to receive an inheritance from another individual, that inheritance could be taken away through civil legal means available to the victim who holds the restitution order. To be sure, it would require some effort on the part of the victim business owner but it could be done.

Enlist an Idaho Estate Planning and Probate Attorney to Help You

Our experienced Estate Planning team of attorneys can help you and your family with your Idaho estate plan or with your probate needs. Whether you are seeking your own customized Estate Plan or need a Probate for a loved one who has passed, we are available to discuss your options and answer your questions at an initial consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a consultation with the Racine Olson team. You can also email us directly at We will answer your questions and will help you solve your Idaho Estate Planning and Probate problems.

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