CASE NOTES

History. - See Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983), aff'd, 312 N.C. 692, 325 S.E.2d 195 (1985).

Legislative Intent. - See Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983), aff'd, 312 N.C. 692, 325 S.E.2d 195 (1985).

The apparent purpose of the full statute is to bar the benefits of certain types of property rights and interests otherwise accruing to a person but for his wrongful acts or a divorce or annulment. Taylor v. Taylor, 321 N.C. 244, 362 S.E.2d 542 (1987).

Abandonment. - Assuming arguendo that the clerk could properly re-date the assignment and deficiency judgment, the trial court erred in concluding that appellant willfully and without just cause abandoned the decedent; to the extent that appellant's divorce filings indicated a willful desire to end her relationship, the evidence did not support a conclusion of abandonment without just cause. Appellant was not the wrongdoer and was not to suffer the consequence of being barred her spousal rights. In re Estate of Meetze, - N.C. App. - , - S.E.2d - (July 21, 2020).

Right to Take under Will Not Forfeited by Abandonment. - The right of the widow to take under her husband's will that which he saw fit to bequeath or devise to her is not among the rights which this section declares forfeited by her abandonment of him. Abbott v. Abbott, 269 N.C. 579, 153 S.E.2d 39 (1967).

Divorce Does Not Annul or Revoke Designation of Insurance Beneficiary. - Neither G.S. 50-11 which provides that "all rights arising out of the marriage shall cease and determine," nor this section which bars rights to "any rights or interests in the property of the other spouse" discloses a legislative intent that divorce should annul or revoke the beneficiary designation in a garden-variety insurance certificate. DeVane v. Travelers Ins. Co., 8 N.C. App. 247, 174 S.E.2d 146 (1970).

Presumption of Adultery. - Adultery is presumed if the following can be shown: (1) the adulterous disposition, or inclination, of the parties; and (2) the opportunity created to satisfy their mutual adulterous inclinations. In re Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991).

Wife's Behavior as Inference of Adultery. - A married woman's refusal to testify about the nature of her relationship with two unmarried men, with whom she admitted cohabiting, and her failure to refute the charge of adultery logically gave rise to an inference of adultery. In re Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991).

"Living in Adultery." - Considering the legislative history and the purpose of this section, "living in adultery" means a spouse engages in repeated acts of adultery within a reasonable period of time preceding the death of her spouse; therefore, "living in adultery" requires a showing of something more than "committing adultery," or a single act of adultery, and something less than "residing" in adultery because the latter construction would permit spouses to engage in habitual adultery with those with whom they do not reside and nevertheless be qualified to administer their decedent spouse's estate under section 28A-6-1. In re Estate of Montgomery, 137 N.C. App. 564, 528 S.E.2d 618 (2000).

Subdivision (b)(6) is inapplicable to separation agreements entered into by parties contemplating a separation or divorce from a valid marriage. Taylor v. Taylor, 321 N.C. 244, 362 S.E.2d 542 (1987).

Negligence Is Not Ground for Forfeiture. - The surviving spouse does not lose his right of inheritance because the claim arose on account of the negligence of the surviving spouse since negligence is not one of the grounds for forfeiture of marital rights as set out in this section. Wilson v. Miller, 20 N.C. App. 156, 201 S.E.2d 55 (1973).

Failure to Provide Support Tantamount to Abandonment. - Where the husband made his wife leave, or where she had to leave because he would not give her anything to eat, it was held that his conduct amounted to abandonment. High v. Bailey, 107 N.C. 70, 12 S.E. 45 (1890), construing former G.S. 28-12.

Summary judgment was appropriate for the defendant under this section where the evidence failed to support a finding of willful abandonment of the deceased, and that any failure to care for, or cohabit with, her was due to the advanced age and deteriorating health of both spouses. Meares v. Jernigan, 138 N.C. App. 318, 530 S.E.2d 883 (2000).

Proceeding to set aside invalid divorce decree is not barred by death of one of the spouses where property rights are involved. Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987).

Wrongful Death Action - In a wrongful death action, the real parties in interest were the beneficiaries as defined in the Wrongful Death Act, who were the same persons who would have received property had the decedent died intestate; where a widow, who was the decedent's sole intestate beneficiary, had abandoned the decedent before his death, she was not entitled to a wrongful death recovery, and since the remaining beneficiaries did not succeed to a full 100 percent, but only received their original percentage, there were no beneficiaries to the wrongful death claim. Locust v. Pitt County Mem'l Hosp., 154 N.C. App. 103, 571 S.E.2d 668 (2002), cert. denied, 356 N.C. 673, 579 S.E.2d 272 (2003).

Where decedent's ex-spouse abandoned her interest in the decedent's estate at the time of death, decedent's siblings were entitled to share in any wrongful death proceeds, distribution was dictated by the laws of intestacy, and decedent's sister, as administratrix had standing to file the action. Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

Cited in In re Estate of Perry, 256 N.C. 65, 123 S.E.2d 99 (1961); Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104 (1961); Brinson v. Brinson, 334 F.2d 155 (4th Cir. 1964); Imperial Tobacco Group Ltd. v. Peoples Bank & Trust Co., 7 N.C. App. 202, 171 S.E.2d 807 (1970); In re Estate of Cox, 97 N.C. App. 312, 388 S.E.2d 199 (1990); Coombs v. Coombs, 121 N.C. App. 746, 468 S.E.2d 807 (1996); Buchanan v. Buchanan, 207 N.C. App. 112, 698 S.E.2d 485 (2010).

CASE NOTES

Intestate Succession Act Modified by Chapter. - When the legislature, in G.S. 28A-18-2, provided that the proceeds of an action for wrongful death "shall be disposed of as provided in the Intestate Succession Act," and when it provided in G.S. 97-40 that the order of priority among claimants to death benefits payable under the Workers' Compensation Act "shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate," it had in mind the same law; i.e., the Intestate Succession Act as modified by this Chapter, entitled, "Acts Barring Property Rights." Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Section Also Modifies G.S. 29-15(3). - This section must be deemed a part of the Intestate Succession Act and a modification of G.S. 29-15(3), as fully as if it had been written thereinto or specifically designated as an amendment thereto. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Construction. - G.S. 31A-2, precluding an abandoning parent from taking anything from the abandoned child's intestate estate, was ambiguous because nowhere in Chapter 31A was the term "child" defined, nor was the meaning of the term clear from its context, so "child" here could reasonably mean either a minor offspring or an offspring of any age. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

Meaning of Abandonment. - Abandonment is defined as any willful or intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475 (1985), aff'd, 316 N.C. 546, 342 S.E.2d 522 (1986).

Logically, G.S. 31A-2, prohibiting a parent who abandoned a child from taking anything from the child's intestate estate, had to apply to an abandonment that initially occurred while the child was a minor as a parent could not abandon an emancipated or adult child when the parent had no further responsibility for the child. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

Applicability to Estate of Adult Child. - This section applies to the estate of any son or daughter of an individual, even after that child has reached the age of majority. In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779.

Abandonment has been defined as willful neglect and refusal to perform the natural and legal obligations of parental care and support; if a parent withholds his presence, his love, his care, and the opportunity to display filial affection, and willfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child. Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475 (1985), aff'd, 316 N.C. 546, 342 S.E.2d 522 (1986).

North Carolina Supreme Court had implicitly held that G.S. 31A-2 applied to a dispute as to a father's rights to share in his daughter's estate even though she was not a minor at the time of her death. In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003).

North Carolina General Assembly adequately demonstrated an unwillingness to allow an abandoning parent to take from an abandoned adult child as the result of a mechanical application of the rules of intestate succession. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

When a deceased child's mother filed a declaratory judgment action against the child's father, seeking a determination of the parties' rights to share in the child's estate, including the proceeds of a wrongful death suit on the child's behalf, under G.S. 31A-2, because the father did not support or communicate with the child from age four until almost age 20, the father's motion to dismiss, under G.S. 1A-1, Rule 12(b)(6), was properly denied; while the father resumed support of and contact with the child before the child's death, support had to be resumed at least one year before the end of the father's legal obligation to support the child, which ended at age 18, to apply the exception to G.S. 31A-2's preclusion, found in G.S. 31A-2(1), so that exception did not apply to the father. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

Legislative intent behind G.S. 31A-2, precluding an abandoning parent from sharing in the abandoned child's intestate estate, was both to discourage parents from shirking their responsibility of support to their children and to prevent an abandoning parent from reaping an undeserved bonanza, and if G.S. 31A-2 had no application once a child reached majority, a parent who had abandoned his or her child would nevertheless automatically inherit if the still-abandoned child died intestate after reaching the age of 18 so such an interpretation would frustrate the statute's purpose and effectively forgive the abandoning parent's dereliction; G.S. 31A-2 applied to any abandoned child dying intestate regardless of the child's age at death. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

Critical inquiry as to G.S. 31A-2(1), allowing a parent who had abandoned a child to share in the child's intestate estate if the parent had resumed supporting the child, was not whether a parent could resume a relationship with a child, but whether a parent resumed its care and maintenance at least one year prior to the death of the child and continued the same until its death so the exception required that the parent resume both the care and maintenance of the child, and these requirements could not be read in the disjunctive; while "care" pertained to love and concern for the child, "maintenance" referred to the financial support of a child during minority, and North Carolina jurisprudence established that the authority of a court to require support for a normal child ceased when the legal obligation to support no longer existed so the parents' duty to support ceased upon emancipation, and the age of emancipation was precisely fixed at 18. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

G.S. 31A-2, precluding an abandoning parent from sharing in the abandoned child's intestate estate, pertained to the estate of a child of any age, and under the logic of that analysis - that a parent who abandoned a child should benefit from the death of the child only if the parent had resumed a parental relationship with the child - an abandoning parent who sought to come under the exception in G.S. 31A-2(1), allowing an abandoning parent to share in the abandoned child's intestate estate if support of the child was resumed, had to renew both the care and the maintenance of the child during the child's minority, when care and maintenance were most valuable; under the terms of the statute, the care and maintenance had to continue for a year before the child's death so, in order to benefit from this provision, a parent had to renew such care and maintenance at least one year before the child reached the age of 18. McKinney v. Richitelli, 357 N.C. 483, 586 S.E.2d 258 (2003).

Legislative intent behind G.S. 31A-2, precluding an abandoning parent from inheriting from an abandoned child, is both to discourage parents from shirking their responsibility of support to their children and to prevent an abandoning parent from reaping an undeserved bonanza, and the general assembly demonstrated its unwillingness to allow an abandoning parent to take from an abandoned adult child as the result of a mechanical application of the rules of intestate succession. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

Willful intent is an integral part of abandonment and this is a question of fact to be determined from the evidence. Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475 (1985), aff'd, 316 N.C. 546, 342 S.E.2d 522 (1986).

Abandoning Parent Does Not Share Death Benefits under G.S. 97-38. - Where the father wilfully abandoned the care and maintenance of the deceased during the latter's minority, this section provides that the father loses all right to intestate succession in the distribution of the personal estate of his intestate deceased child and consequently, he does not share in the death benefits for which the employer or its carrier is liable under G.S. 97-38. Smith v. Allied Exterminators, Inc., 279 N.C. 583, 184 S.E.2d 296 (1971).

Operative language in G.S. 31A-2, precluding an abandoning parent from inheriting from an abandoned child, is nearly identical to that in G.S. 97-40, precluding the receipt of workers' compensation benefits by an abandoning parent due to the death of an abandoned child, as both statutes provide that a parent who has abandoned the "care and maintenance" of a child loses the right to receive a specified benefit upon the child's death, and both provide an exception when the parent has resumed the "care and maintenance" of the child at least one year prior to the child's death or majority. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

Or Wrongful Death Proceeds. - This section acts to preclude a parent who comes within its provisions from sharing in wrongful death proceeds. Williford v. Williford, 26 N.C. App. 61, 214 S.E.2d 787, aff'd, 288 N.C. 506, 219 S.E.2d 220 (1975); Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475 (1985), aff'd, Havee v. Belk, 775 F.2d 1209 (4th Cir. 1985).

Plaintiff father, having abandoned the deceased when the latter was a minor child, could not share in the proceeds of the settlement of the claim for wrongful death now in the hands of the administratrix. Williford v. Williford, 288 N.C. 506, 219 S.E.2d 220 (1975).

Construction of Exception - Exception contained in G.S. 31A-2(2) must be construed in accordance with the policy underlying Chapter 31A; the exception contained in G.S. 31A-2(2) essentially states that if a court takes away custody of a child and decides the specifics of support, then a parent should not be denied the right to participate in intestate succession if he limits his role in his child's life to the parameters set out by a court. In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003).

Exception in G.S. 31A-2(2) to precluding an abandoning parent from inheriting from an abandoned child essentially states that a parent should not be denied the right to participate in intestate succession if he limits his role in his child's life to the parameters set out by a court, at least when the abandoning parent complies with the express terms of a court order requiring contribution to the support of the child, so an exception to the general rule of disinheritance is justified under such circumstances, because the legislative intent underlying G.S. 31A-2 is not effectuated by the disinheritance of a non-custodial parent who provides the court-ordered level of material support; put simply, a parent who limits his role in his child's life to the parameters set out by a court has not shirked his responsibility to that child. so, construing G.S. 31A-2(2) to apply it only to a parent who was ordered to provide support effectuates the legislative intent behind that exception. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

If a parent voluntarily provides adequate "care and maintenance" to a child, for purposes of G.S. 31A-2, that parent cannot be said to have abandoned the child in the first instance, and, as an exception to the general rule of disinheritance, G.S. 31A-2(2) comes into play only when a parent has failed to provide care and support of his or her own volition, so the exception provides that a parent should not be penalized for his or her failure to exceed the terms of a judicial child support order, and the statute should not be applied to the disadvantage of a parent who voluntarily provides adequate care and support. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

When a father was not ordered to pay support for his child, when custody of the child was awarded to the child's mother, and the father did not voluntarily provide an adequate level of support for the child during the 17 years following the mother's and father's divorce, when the child died, the father was precluded from sharing in the proceeds of the child's estate because he wilfully abandoned her, and the exception to such preclusion in G.S. 31A-2(2), which applied to non-custodial parents who complied with court orders to support a child, did not apply to him because he was not ordered to pay support for the child, and he did not voluntarily provide an adequate amount of such support. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

Exception in Subsection (2) Applied - Trial court erred in concluding that a father did not fall within the scope of G.S. 31A-2(2) where: (1) the father was deprived of custody under the divorce decree, (2) the decree did not grant the father any visitation rights, and (3) because the district court in its divorce judgment considered the issue of child support but elected not to require the father to pay support, the father complied with the only order in existence addressing the question of child support. In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003).

G.S. 31A-2(2) provides that an abandoning parent may inherit from an abandoned child if the parent has substantially complied with all orders of the court requiring contribution to the support of the child, so, by its express language, this statutory exception to the preclusion of an abandoning parent's inheritance from an abandoned child may not be invoked where a court order has not "required" the payment of child support. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

Abandonment Found. - Where respondent/mother never provided child support for her daughters, rarely visited them, and voluntarily relinquished custody a year before a divorce judgment, a jury could conclude that she had abandoned her daughters. Hixson v. Krebs, 136 N.C. App. 183, 523 S.E.2d 684 (1999).

A father abandoned his daughter and, therefore, could not inherit from her, where he paid no more than $100 toward her support after the divorce and visited her less than a dozen times over a 17-year period. In re Estate of Lunsford, 143 N.C. App. 646, 547 S.E.2d 483 (2001), cert. granted, 353 N.C. 727, 550 S.E.2d 779.

Trial court's findings of fact supported its conclusion that a father wilfully abandoned the care and maintenance of his child, under G.S. 31A-2, because, even assuming the child and her mother refused to accept the father's occasional offers of financial assistance, the trial court could reasonably find that the father's sporadic contacts with his daughter over 17 years did not show the degree of "presence," "love," "care," and "opportunity to display filial affection" that defined non-abandoning parents. In re Estate of Lunsford, 359 N.C. 382, 610 S.E.2d 366 (2005).

No Abandonment Found - Trial court erred in concluding that a father had willfully abandoned his child for purposes of G.S. 31A-2 where: (1) the mother was awarded sole custody of the child in a divorce decree that did not address visitation rights or any child support obligation of the father, (2) the father offered to help pay for the child's expenses on occasion, but his offers were refused by the mother, (3) the father sporadically visited the child, (4) as the child grew older, either the child or the father would initiate phone calls, visits, or other relational contact, and (5) the father attended the child's high school graduation, and both had initiated plans for furthering their father-daughter relationship. In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003).

When a mother alleged a father's abandonment of a child deprived the father of a share of the child's intestate estate, it was no error to grant the father's motion in limine to bar expert testimony on child-raising costs because such testimony was likely to confuse the jury, given the existence of child support orders. Shearin v. Reid, 258 N.C. App. 42, 812 S.E.2d 381 (2018).

Jury Instruction on Legislative Intent Not Required. - When a mother alleged a father's abandonment of a child deprived the father of a share of the child's intestate estate, a jury instruction on the legislative intent behind G.S. 31A-2 was not required because the jury was adequately instructed on the substance of the statute. Shearin v. Reid, 258 N.C. App. 42, 812 S.E.2d 381 (2018).

Applied in In re Peacock, 261 N.C. 749, 136 S.E.2d 91 (1964).

Cited in Lessard v. Lessard, 68 N.C. App. 760, 316 S.E.2d 96 (1984).

CASE NOTES

The public policy sought to be fostered by the enactment of this Article is predicated upon the theory that the murderer himself will not profit by his own wrongdoing; however, this principle does not extend to those related to the slayer. Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983), aff'd, 312 N.C. 692, 325 S.E.2d 195 (1985).

As to legislative history of subdivision (3)a, see Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

This Article, the "slayer statute," applies only to felonious killings; it does not prevent the common law doctrine that no person will be allowed to profit from his own wrong from being applied in actions not under its provisions. In re Estate of Cox, 97 N.C. App. 312, 388 S.E.2d 199 (1990).

"Willful" as used in subdivision (3)a refers to an "intentional" homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

The crime of involuntary manslaughter is not a "willful" killing within the meaning of subdivision (3)a. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

A person who has been convicted of involuntary manslaughter of another has not been convicted of a "willful" killing within the meaning of subdivision (3)a and thus is not a slayer who is barred by this Chapter from receiving the proceeds of a life insurance policy on the life of the deceased. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Proof of conviction of involuntary manslaughter does not, per se, disqualify defendant from receiving the insurance proceeds under G.S. 31A-11. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

Subdivision (3)a envisions a conviction of unlawful homicide. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Unlawful Homicide Is a Felony. - See Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Finding by Court Was Not Conviction. - The finding made by a district court judge that "this child did willfully and with malice aforethought murder his mother and father" did not constitute a conviction as envisioned by subdivision (3)a; therefore, the "barring" provisions of this Chapter did not apply. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Acquittal of Murder Avoids Forfeiture. - A plea by widow that she has been acquitted of the murder of her husband states a complete defense to the claim that she has forfeited her property rights as his widow. McMichael v. Proctor, 243 N.C. 479, 91 S.E.2d 231 (1956), decided under former G.S. 28-10.

G.S. 31A-13 has no applicability where the alleged wrongdoer has not been determined a "slayer" within the purview of subdivision (3). Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

But Common Law Barred Person Found Responsible by Preponderance of Evidence from Receiving Insurance Proceeds. - Although plaintiff did not fit the statutory definition of "slayer" under subdivision (3) of this section because she had not been convicted of killing deceased, she was nonetheless barred by the common law from receiving the proceeds of deceased's life insurance, where the jury found by a preponderance of the evidence that she had killed him or procured his death. Jones v. All Am. Life Ins. Co., 68 N.C. App. 582, 316 S.E.2d 122 (1984), aff'd, 312 N.C. 725, 325 S.E.2d 237 (1985).

Failure to Proceed Within One Year. - Plaintiff 's failure to proceed under the slayer statute within one year did not bar him from attempting to show that intestate's culpable negligence proximately contributed to the deaths of the decedents and that her estate could not profit from those wrongs. Lynch v. Newsom, 96 N.C. App. 53, 384 S.E.2d 284, cert. denied, 326 N.C. 48, 389 S.E.2d 90 (1990).

Summary Judgment Improper. - Trial court committed reversible error in granting motion for summary judgment in favor of wife, where wife sought to collect insurance proceeds from her husband's death, although she stabbed him to death. State Farm Life Ins. Co. v. Allison, 128 N.C. App. 74, 493 S.E.2d 329 (1997), cert. denied, 347 N.C. 584, 502 S.E.2d 616 (1998).

Person Found to be "Slayer" as Defined Under G.S. 31A-3(3)(a). - In December 2008, the Wake County Superior Court entered a civil judgment finding that debtor was the slayer of his wife; on March 5, 2012, he was sentenced to life imprisonment without parole after a jury found him guilty of murdering her in the first degree. Based on the undisputed civil and criminal judgments, the court found that debtor was a slayer as defined under G.S. 31A-3(3)(a). In re Young, - Bankr. - (Bankr. E.D.N.C. May 9, 2012).

Applied in Tew v. Durham Life Ins. Co., 1 N.C. App. 94, 160 S.E.2d 117 (1968); Homanich v. Miller, 28 N.C. App. 451, 221 S.E.2d 739 (1976); Jones v. All Am. Life Ins. Co., 312 N.C. 725, 325 S.E.2d 237 (1985); Atwater v. Nortel Networks, Inc., 388 F. Supp. 2d 610 (M.D.N.C. Sept. 6, 2005).

Cited in State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981); Mothershed v. Schrimsher, 105 N.C. App. 209, 412 S.E.2d 123 (1992); Locust v. Pitt County Mem'l Hosp., Inc., 358 N.C. 113, 591 S.E.2d 543 (2004).

CASE NOTES

The slayer statute applies in conjunction with the anti-lapse statute, G.S. 31-42. Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983), aff'd, 312 N.C. 692, 325 S.E.2d 195 (1985).

Estate of Decedent Determined at Date of Her Actual Death. - This section makes no attempt artificially to alter the date of the death of the decedent but provides instead that the actual date of death of the slayer is to be disregarded. Therefore, if the language of the statute is followed, the estate of the decedent is determined at the date of her actual death, and the law calls the roll of the class immediately as of that time; those who can then answer, take. Porth v. Porth, 3 N.C. App. 485, 165 S.E.2d 508 (1969).

This section provides in part that, for purposes of distributing the estate of the decedent, "the slayer shall be deemed to have died immediately prior to the death of the decedent." In view of this express statutory presumption, it is clear that the words "the estate of the wife" as the same were used in former G.S. 31A-5(2) meant the estate of the murdered wife as the same came into existence at the instant of her death, and the title to the entireties property at that moment passed to those persons who would be entitled to succeed to her interest in such property as of the moment of her death if she had in fact survived her husband, subject only to recognized right to "hold" the property during his lifetime. Porth v. Porth, 3 N.C. App. 485, 165 S.E.2d 508 (1969).

Presumption in Subdivision (3) Equivalent to Actual Death. - It was the intent of the General Assembly that the presumption in subdivision (3) of this section be equivalent to actual death for all purposes of determining the disposition of property of the testator. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Slayer's Legacy Distributed in Accord with G.S. 31-42(a). - Because of the failure of a slayer's legacy, the property that would have gone to him under the will had he not been convicted of killing the testator must be distributed in accord with G.S. 31-42(a). Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Order of Death Not Established for Purposes of Distributing Slayer's Estate. - The clause in this section which deems the slayer to have predeceased the victim does not establish the order of death between the slayer and the victim for purposes of distributing the slayer's estate. Mothershed v. Schrimsher, 105 N.C. App. 209, 412 S.E.2d 123 (1992).

Section Does Not Authorize Victim's Participation in Estate. - The plain language of this section clearly bars the slayer from participating in the victim's estate; however, it does not authorize the victim to participate in the slayer's estate; that may or may not occur. Mothershed v. Schrimsher, 105 N.C. App. 209, 412 S.E.2d 123 (1992).

Section Merely Establishes Presumption to Exclude Slayer. - This section does not indulge the fiction that the slayer's date of death is other than the actual date of death, but merely establishes a presumption to exclude the slayer. Mothershed v. Schrimsher, 105 N.C. App. 209, 412 S.E.2d 123 (1992).

Where slayer's two children are alive and would have been heirs of testator had he died intestate, slayer's failed legacy must pass by substitution to them in accordance with G.S. 31-42(a). Because of the conclusive presumption in subdivision (3) of this section that the slayer predeceased the testator, G.S. 31-42(a), not G.S. 31-42(c)(2), applies. Misenheimer v. Misenheimer, 312 N.C. 692, 325 S.E.2d 195, rehearing denied, 313 N.C. 515, 334 S.E.2d 778 (1985).

Where a husband has taken out a policy of life insurance on his own life with his wife as beneficiary and has feloniously killed his wife and then himself, under this section (former G.S. 28-10), his heirs may not claim under him the proceeds of the policy, since the law will not allow a man or those claiming under him to benefit by his own wrong, and the proceeds of the policy are descendible to the next of kin of the wife and not to the husband's heirs at law. Parker v. Potter, 200 N.C. 348, 157 S.E. 68 (1931).

Heir Murdering Ancestor Excluded from Beneficial Interest in Estate. - The fact that this (former G.S. 28-10) and other sections forfeiting a murder's interest in the estate of his victim apply only to the relation of husband and wife does not deprive equity of the power of excluding an heir who has murdered his ancestor from all beneficial interest in the estate of his victim. Garner v. Phillips, 229 N.C. 160, 47 S.E.2d 845 (1948). For suggested revisal of this section and related statutes, see 26 N.C.L. Rev. 232 (1948).

Wrongful Act Bars Husband from Share of Wrongful Death Recovery. - In an action by an administrator under the Wrongful Death Act where a husband caused the death of his wife, the award must be reduced by the statutory share of the wrongdoer. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

This result is not precluded by this section, which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased, since the slayer's exclusion by this section appears to apply only to inheritance from the decedent's "estate," while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased, but rather to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583 (4th Cir. 1973).

Former Law. - See Owens v. Owens, 100 N.C. 240, 6 S.E. 794 (1888).

Cited in Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975); State v. Gilmore, 330 N.C. 167, 409 S.E.2d 888 (1991).

§ 31A-5: Recodified as G.S. 41-64(b) by Session Laws 2020-50, s. 1(b), effective June 30, 2020.

CASE NOTES

The slayer-husband should have only the income during his lifetime from his one-half share of a joint bank account, subject to the rights of his creditors, and at his death the principal should pass to the estate of his deceased wife. Porth v. Porth, 3 N.C. App. 485, 165 S.E.2d 508 (1969).

CASE NOTES

Proof of conviction of involuntary manslaughter does not, per se, disqualify defendant from receiving the insurance proceeds under this section. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

But Culpable Negligence Does. - Under the common law of this State defendant was disqualified from receiving any insurance proceeds from the policy insuring her deceased husband's life, since the killing, although unintentional, nonetheless resulted from her culpable negligence, that is, conduct incompatible with a proper regard for human life. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

Culpable negligence proximately resulting in death comes within the purview of the common-law maxim that no one shall be permitted to profit by his own wrong. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

Evidence Sufficient to Support Conclusion That Beneficiary Was Disqualified. - Evidence not objected to that a defendant beneficiary had been convicted of the involuntary manslaughter of the insured was sufficient to support the court's conclusion that defendant is disqualified under the common law from receiving the proceeds of the insurance policy. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Legislature specifically included in subsection (b) a proviso to deal with alternative beneficiaries. Gardner v. Nationwide Life Ins. Co., 22 N.C. App. 404, 206 S.E.2d 818, cert. denied, 285 N.C. 658, 207 S.E.2d 753 (1974).

"Some Person" Should Not Be Narrowly Construed. - The term "some person" contained within the proviso in subsection (b) should not be narrowly construed. Gardner v. Nationwide Life Ins. Co., 22 N.C. App. 404, 206 S.E.2d 818, cert. denied, 285 N.C. 658, 207 S.E.2d 753 (1974).

Those Related to Slayer Named as Alternative Beneficiaries May Benefit. - The public policy sought to be fostered by the enactment of this Chapter is predicated upon the theory that the murderer himself will not profit by his own wrongdoing; however, this principle does not extend to those related to the slayer, when they are named in the insurance contract as alternative beneficiaries. Gardner v. Nationwide Life Ins. Co., 22 N.C. App. 404, 206 S.E.2d 818, cert. denied, 285 N.C. 658, 207 S.E.2d 753 (1974).

CASE NOTES

Cited in Mothershed v. Schrimsher, 105 N.C. App. 209, 412 S.E.2d 123 (1992).

CASE NOTES

This section is simply a statutory exception to the universal rule that the record of a conviction in a criminal proceeding is not admissible in a subsequent civil action to prove the guilt or innocence of the person tried. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

It has no applicability where the alleged wrongdoer has not been determined a "slayer" within the purview of G.S. 31A-3(3). Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

If the party seeking to disqualify the beneficiary cannot proceed under this Chapter - as when the jury in the criminal proceeding finds the wrongdoer guilty of involuntary manslaughter - then his only remaining remedy is to proceed under the common law. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

Where Wrongdoer Convicted of Crime Not Amounting to "Willful and Unlawful Killing". - When the wrongdoer is not disqualified by this Chapter from receiving the insurance proceeds, and the common law must be relied on for such disqualification, the record of a criminal conviction of the wrongdoer for a crime not amounting to a "willful and unlawful killing," such as a conviction for involuntary manslaughter, is not admissible, and it is necessary to prove at the trial the factual circumstances relating to the killing from which the court can determine the issue. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Cited in Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104 (1961); Tew v. Durham Life Ins. Co., 1 N.C. App. 94, 160 S.E.2d 117 (1968).

CASE NOTES

As to legislative history, see Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

This section preserved the common law, both substantively and procedurally, as to all acts not specifically provided for in this Chapter. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975); Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

This Chapter does not wholly supplant the common law, which prevents a beneficiary in a policy of life insurance whose culpable negligence caused the death of the insured from collecting the proceeds of the policy. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975); Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 258 S.E.2d 864 (1979).

The provisions of this Chapter do not completely supplant the common-law principle prevailing in North Carolina that a person should not be allowed to profit by his own wrong. Lofton v. Lofton, 26 N.C. App. 203, 215 S.E.2d 861 (1975).

Public Policy Applied - Father's failure to pay child support when a divorce court considered the issue of child support but decided not to order him to pay child support was consistent with the only pertinent order and with the mother's wishes and could not be deemed wrong in the sense of the public policy expressed in G.S. 31A-15 and could not prevent the father from sharing in his daughter's intestate estate under G.S. 31A-2(2). In re Estate of Lunsford, 160 N.C. App. 125, 585 S.E.2d 245 (2003).

If the party seeking to disqualify the beneficiary cannot proceed under this Chapter, as when the jury in the criminal proceeding finds the wrongdoer guilty of involuntary manslaughter, then his only remaining remedy is to proceed under the common law. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563 (1975).

Applied in Homanich v. Miller, 28 N.C. App. 451, 221 S.E.2d 739 (1976); Misenheimer v. Misenheimer, 62 N.C. App. 506, 303 S.E.2d 415 (1983); Jones v. All Am. Life Ins. Co., 312 N.C. 725, 325 S.E.2d 237 (1985); In re Trogdon, 330 N.C. 143, 409 S.E.2d 897 (1991); In re Estate of Montgomery, 137 N.C. App. 564, 528 S.E.2d 618 (2000).

Cited in Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104 (1961); Brinson v. Brinson, 334 F.2d 155 (4th Cir. 1964); In re Trogdon, 101 N.C. App. 323, 399 S.E.2d 396 (1991); Meares v. Jernigan, 138 N.C. App. 318, 530 S.E.2d 883 (2000).