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Lizzie Borden: simultaneous death and slayer statutes

Lizzie Borden took an axe and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one.

Andrew Jackson Borden and Abby Durfee Gray were murdered on August 4, 1892. Abby died first at approximately 9:30 a.m., after being struck 18-19 times with a hatchet or sharp instrument. Approximately 1.5 hours later at 11:00 a.m., Andrew was struck 11 times with a hatchet while napping on a sofa. The prime suspect in the case was Andrew’s daughter and Abby’s stepdaughter, Lizzie. Lizzie stood trial and was acquitted of the murders on June 20, 1893. Later that year, Lizzie and her full sister Emma used a portion of their inheritance, estimated to be $300,000 (about $8.2 million now), to purchase a 13-room home in the affluent part of their hometown of Fall River, Massachusetts. Lizzie lived in that home until she passed away in 1927. The murder of the Bordens remains unsolved to this day.

The Borden case is an interesting case for illustrating some estate law concepts.

Close in time and simultaneous death statutes

The first concept deals with close in time and simultaneous deaths. When two people die within a short amount of time, or if it is impossible to determine which person died first, the law steps in and provides guidance. Under Arizona law, a person must survive a deceased person by 120 hours to inherit property from the deceased person’s estate. One exception is if the deceased person’s will or trust explicitly provides otherwise. If survival cannot be proved by “clear and convincing” evidence, then it is assumed that the person did not survive or outlive the deceased person. The Arizona survival requirement can be found in section 14-2702 of the Arizona Statues. Simultaneous death statutes appeared in the 1940s. Prior to that, usually survival of any sort (even by a few hours or minutes) allowed a person to inherit from another person’s estate.

Actual scenario: Blood coagulation at the murder scene proved that Abby died before Andrew. While historical statutes from 1892 Massachusetts are difficult to locate online, we can probably assume that survival of any sort was sufficient for inheritance back then. Since Andrew outlived Abby, Abby’s entire estate went to Andrew. Andrew died 1.5 hours later and his two daughters, Lizzie and Emma, inherited his entire estate (including the portion from Abby’s estate).

Reverse scenario: Consider what would have happened if the order had been reversed and Andrew died at 9:30 and Abby died at 11:00. In that situation Abby would have inherited some, or possibly all, of Andrew’s estate. After her death, her estate would have gone to her blood relatives, not her stepchildren, Lizzie and Emma. Lizzie and Emma would have only received the remaining portion of Andrew’s estate that did not go to Abby.

Present day in AZ: Had the murder occurred today in Arizona, Abby’s estate would have gone to her blood relatives and Andrew’s estate would have gone to Lizzie and Emma. Neither Abby nor Andrew would have received property from the other’s estate because neither outlived the other by 120 hours.

Don’t miss: A state estate tax – the other death tax

By way of example, here is the outcome of the three situations assuming the following facts: Andrew’s assets were $250,000, Abby’s assets were $50,000, Abby did not have any biological or adopted children, Abby’s heirs were her two sisters, and a “surviving” spouse gets 50% of an estate if there are children from a prior marriage and 100% if there are no children from a prior marriage.

  • Actual scenario: Lizzie gets $150,000, Emma gets $150,000 and Abby’s sisters get nothing.
  • Reversed scenario: Lizzie gets $62,500, Emma gets $62,500 and Abby’s sisters each get $87,500
  • Present day AZ: Lizzie gets $125,000, Emma gets $125,000 and Abby’s sisters each get $25,000

Slayer statutes

The second concept deals with “slayer statutes.” Slayer statutes are statutes that prevent a victim’s killer from receiving any benefits or property from the victim’s estate. The killer is also prevented from serving in a fiduciary capacity for the victim, such as being the personal representative of the victim’s estate. The Arizona slayer statute is found in section 14-2803 of the Arizona Statutes.

The Arizona slayer statute applies to people convicted of first- or second-degree murder or manslaughter. If a criminal conviction occurs, that is conclusive evidence that the slayer statute applies. If there is not a criminal conviction, an interested person, such as the victim’s other family members, can bring a civil action against the purported killer to have the slayer statutes apply. The civil action uses a “preponderance of the evidence” standard, which is a less rigorous standard than the criminal court’s “beyond a reasonable doubt” standard. Most states have some form of a slayer statute and the principle stems from common law.

Since Lizzie was not convicted of the murder of her father and stepmother, she was able to inherit from her father’s estate. Had she been found guilty, Lizzie would have been disinherited and Emma would have received the entire estate.

While we probably will never know who murdered the Bordens, their situation provides some unique “what if” scenarios to explore estate planning concepts like simultaneous deaths and slayer statutes.

Jennifer A. Maas