By Kathleen Reilly
Since 1889, when the New York Court of Appeals declared in
Riggs v. Palmer that “[n]o one shall be permitted to . . .
take advantage of his own wrong, or to . . . acquire property by
his own crime,” New York case law has been unsettled on the effect
of murder on tenancy by the entirety. The tenancy by the
entirety is a unique form of concurrent ownership because it cannot
be unilaterally severed and it can only be formed in a husband and
wife, who each enjoy a right of survivorship. When one spouse
murders the other, the killer’s interest is uncertain because of
the conflict between the holding in Riggs and New York
Civil Rights Law section 79-b, which prevents the forfeiture of
property following a conviction. These opposing standards
have created uncertainty and inequity within New York case law,
resulting in the courts’ espousal of three different approaches to
determining the killer’s property rights. Although many
states have legislatively addressed the implications of murder for
tenancy by the entirety, New York law remains unsettled on the
subject. This Note argues that the New York legislature must
enact a statutory provision clarifying this area of law because a
statute will create reliability, promote economy and judicial
efficiency, and relieve the judiciary of the task of legislating
from the bench.
In enacting legislation, the New York legislature has five
options. First, the legislature can adopt the approach announced by
the Surrogate’s Court Advisory Committee’s Report, which entitles
the killer to the value of his contribution toward the property,
limited to one-half the value of a life estate in the
tenancy. The second approach, outlined in the Uniform Probate
Code’s slayer statute, section 2-803, severs the tenancy by the
entirety and the killer and his victim become tenants in
common. The third option is to preclude the killer from
taking any interest in the tenancy and vest the property as a whole
with the victim’s estate. The fourth option is to grant the
killer a life estate but terminate his right of survivorship.
Finally, the legislature can enact a law that grants the killer the
commuted value of a one-half life estate in the property, and
denies him his right of survivorship. This note examines
these five options, and considers the advantages and disadvantages
of each.
This Note advocates the codification of a law that grants the
killer a commuted one-half life estate in the property or proceeds
from sale of the property because it effectively balances the
contrasting principles found in both Riggs and New York Civil
Rights Law section 79-b, and successfully implements the necessary
reforms. This Note proposes statutory language to effectuate
this outcome and then analyzes its application to the complex
factual situations confronting the courts.