The rule, and the mechanism
Every legal system has some version of the principle that you cannot inherit from someone you killed. Florida’s version for trusts is this section, and the mechanism it uses is worth noticing.
A beneficiary of a trust who unlawfully and intentionally kills or unlawfully and intentionally participates in procuring the death of the settlor or another person on whose death such beneficiary’s interest depends, is not entitled to any trust interest, including homestead, dependent on the victim’s death, and such interest shall devolve as though the killer had predeceased the victim.
Section 736.1104(1), Florida Statutes.
The interest is not forfeited to the state and it does not simply vanish. The killer is treated as having died first. Everything then flows normally. Substitute gifts, alternative takers, and the antilapse rules in section 736.1106 operate as they would have if the beneficiary had genuinely predeceased. In many families that means the killer’s own children take.
Two other features are easy to miss. The rule covers participating in procuring the death, not only doing the killing. And it reaches the death of the settlor or another person on whose death the interest depends, so killing a life tenant to accelerate a remainder is covered.
It also expressly reaches homestead, which matters because homestead usually passes outside the ordinary rules. See section 736.1109 for how homestead and trusts interact generally.
What 2021 added, and why it is the bigger change
Subsection (3) is newer and far less known. It applies the same forfeiture to a beneficiary convicted in any state or foreign jurisdiction of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult, as those terms are defined in section 825.101, for conduct against the settlor or another person on whose death the interest depends.
Nobody has to have died at the beneficiary’s hand. Financial exploitation of an elderly settlor, prosecuted and convicted, can cost the exploiter their inheritance. Given how often trust disputes involve allegations of exactly that, this is a provision with far more everyday application than the slayer rule.
It sits alongside section 736.0406, which voids a trust procured by fraud, duress, mistake or undue influence. The two do different jobs. Section 736.0406 attacks the instrument. This section attacks the beneficiary, leaving the trust standing.
Four standards of proof, and they are not interchangeable
This is where the section repays careful reading, because the burden changes depending on which route you are on.
- A murder conviction is conclusive. A final judgment of conviction of murder in any degree ends the question.
- Without a murder conviction, the standard is the greater weight of the evidence. The court may still determine whether the killing was unlawful and intentional. An acquittal, or no prosecution at all, does not protect the beneficiary in the civil forum.
- An abuse conviction creates a rebuttable presumption only. This is the asymmetry to notice. A conviction for abuse, neglect, exploitation or aggravated manslaughter creates a presumption that the section applies, not a conclusive bar.
- Without an abuse conviction, the standard is again the greater weight of the evidence, on whether the death was caused by or contributed to by the conduct defined in sections 825.102, 825.103 or 782.07(2).
The gap between conclusive and rebuttable is the drafting choice worth understanding. A murder conviction requires proof beyond reasonable doubt of a killing. The abuse offences cover a much wider range of conduct, some of it far from the trust, and the Legislature left room for a beneficiary to show that the conviction should not carry this consequence.
The forgiveness provision, which exists only on one side
This subsection does not apply if it can be proven by clear and convincing evidence that, after the conviction of abuse, neglect, or exploitation, the victim of the offense, if capacitated, ratifies an intent that the person so convicted of abuse, neglect, or exploitation retain a trust interest by executing a valid written instrument, sworn to and witnessed by two persons who would be competent as witnesses to a will, which expresses a specific intent to allow the convicted person to retain a trust interest.
Section 736.1104(3)(c), Florida Statutes.
Every element of that is a hurdle. It must come after the conviction. The victim must be capacitated. It requires a written instrument, sworn, witnessed by two people who would be competent as will witnesses, and expressing a specific intent. And the standard is clear and convincing evidence, the highest in the section.
The requirements are strict because the risk is obvious. The person best placed to pressure an elderly victim into signing a forgiveness document is the person who was convicted of exploiting them.
There is no equivalent route in subsection (1) or (2). A killer cannot be forgiven back into the trust, and the reason needs no explanation.
No Florida court has cited this section
A search returns no citing documents at any precedential status in any court we searched.
We want to be careful about what that means, because there is a temptation here that we are declining. Florida has an established body of case law on the probate slayer statute. That is a different statute, in a different chapter, with different wording, and we are not presenting it as authority on this section. It may well be persuasive. It is not the same provision.
What is genuinely open includes how a court weighs the rebuttable presumption in subsection (3)(a), what evidence rebuts it, and whether a foreign conviction is examined for equivalence to the Florida offences or taken at face value.