[Rev. 11/21/2013 9:02:31 AM--2013]

CHAPTER 41B - ACTION AGAINST KILLER OF DECEDENT FOR FORFEITURE OF CERTAIN PROPERTY, BENEFITS AND RIGHTS

GENERAL PROVISIONS

NRS 41B.010          Definitions.

NRS 41B.020          “Acquitted” defined.

NRS 41B.030          “Agent” defined.

NRS 41B.040          “Beneficiary” defined.

NRS 41B.050          “Community property” defined.

NRS 41B.060          “Community property with right of survivorship” defined.

NRS 41B.070          “Convicted” and “conviction” defined.

NRS 41B.080          “Culpable actor in the felonious and intentional killing of a decedent” defined.

NRS 41B.090          “Governing instrument” defined.

NRS 41B.100          “Interest” defined.

NRS 41B.110          “Interested person” defined.

NRS 41B.120          “Joint tenants with right of survivorship” defined.

NRS 41B.130          “Killer” defined.

NRS 41B.140          “Payor” defined.

NRS 41B.150          “Person” defined.

NRS 41B.160          “Property” defined.

APPLICABILITY OF CHAPTER

NRS 41B.200          General rule; killer cannot profit or benefit from wrong; anti-lapse statute and right of representation; contingent, residuary and other beneficiaries; common law.

NRS 41B.210          Acts constituting felonious and intentional killing; insanity or diminished capacity.

PROCEEDINGS

NRS 41B.250          Criminal action: Conclusive effect of judgment of conviction; admissibility of judgment of conviction in civil action.

NRS 41B.260          Civil action: Parties; burden of proof; evidence; stay of proceedings; limitation on time for commencement.

SCOPE OF FORFEITURE

NRS 41B.300          Estate of decedent.

NRS 41B.310          Governing instruments.

NRS 41B.320          Community property with right of survivorship and joint tenants with right of survivorship.

NRS 41B.330          Action for wrongful death.

LIABILITY

NRS 41B.400          Payor or other third person who pays or transfers forfeited property, interest or benefit.

NRS 41B.410          Person who acquires or receives forfeited property, interest or benefit without legal right or authorization.

NRS 41B.420          Killer who transfers forfeited property, interest or benefit to third person; effect of preemption by federal law.

_________

 

GENERAL PROVISIONS

      NRS 41B.010  Definitions.  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 41B.020 to 41B.160, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 1999, 1348)

      NRS 41B.020  “Acquitted” defined.  “Acquitted” includes, without limitation, a finding of not guilty by reason of insanity or diminished capacity.

      (Added to NRS by 1999, 1348)

      NRS 41B.030  “Agent” defined.  “Agent” means a person who is authorized to represent or act for another person. The term includes, without limitation, an attorney-in-fact under a durable or nondurable power of attorney or a person who is authorized pursuant to the provisions of a governing instrument to make decisions concerning the provision of health care to another person.

      (Added to NRS by 1999, 1348)

      NRS 41B.040  “Beneficiary” defined.  “Beneficiary” means a person who is entitled to accrue, acquire or receive any property, interest or benefit pursuant to the provisions of a governing instrument or the laws of intestate succession.

      (Added to NRS by 1999, 1348)

      NRS 41B.050  “Community property” defined.  “Community property” has the meaning ascribed to it in NRS 123.220.

      (Added to NRS by 1999, 1348)

      NRS 41B.060  “Community property with right of survivorship” defined.  “Community property with right of survivorship” means community property in which a right of survivorship exists pursuant to NRS 111.064 or 115.060 or any other provision of law.

      (Added to NRS by 1999, 1349)

      NRS 41B.070  “Convicted” and “conviction” defined.  “Convicted” and “conviction” mean a judgment based upon:

      1.  A plea of guilty, guilty but mentally ill or nolo contendere;

      2.  A finding of guilty or guilty but mentally ill by a jury or a court sitting without a jury;

      3.  An adjudication of delinquency or finding of guilty or guilty but mentally ill by a court having jurisdiction over juveniles; or

      4.  Any other admission or finding of guilty or guilty but mentally ill in a criminal action or a proceeding in a court having jurisdiction over juveniles.

      (Added to NRS by 1999, 1349; A 2003, 1479; 2007, 1436)

      NRS 41B.080  “Culpable actor in the felonious and intentional killing of a decedent” defined.  “Culpable actor in the felonious and intentional killing of a decedent” means a person who:

      1.  Causes or perpetrates the felonious and intentional killing of the decedent;

      2.  Aids, abets, commands, counsels, encourages, hires, induces, procures or solicits another person to cause or perpetrate the felonious and intentional killing of the decedent; or

      3.  Is a principal in any degree, accessory before the fact, accomplice or conspirator to the felonious and intentional killing of the decedent.

      (Added to NRS by 1999, 1349)

      NRS 41B.090  “Governing instrument” defined.  “Governing instrument” means any of the following:

      1.  A deed or any other instrument that transfers any property, interest or benefit.

      2.  An annuity or a policy of insurance.

      3.  A trust, whether created by an instrument executed during the life of the settlor, a testamentary instrument or any other instrument, judgment or decree, including, without limitation, any of the following:

      (a) An express trust, whether private or charitable, and any additions to such a trust.

      (b) A trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust.

      4.  A will, a codicil or any other testamentary instrument, including, without limitation, a testamentary instrument that:

      (a) Appoints a person to serve in a fiduciary or representative capacity, nominates a guardian or revokes or revises another will, codicil or testamentary instrument; or

      (b) Excludes or limits the right of a person or class of persons to succeed to any property, interest or benefit pursuant to the laws of intestate succession.

      5.  Any account or deposit that is payable or transferable on the death of a person or any instrument that provides for the payment or transfer of any property, interest or benefit on the death of a person.

      6.  A security registered as transferable on the death of a person.

      7.  Any instrument creating or exercising a power of appointment or a durable or nondurable power of attorney.

      8.  Any instrument that appoints or nominates a person to serve in any fiduciary or representative capacity, including, without limitation, an agent, guardian, executor, personal representative or trustee.

      9.  Any public or private plan or system that entitles a person to the payment or transfer of any property, interest or benefit, including, without limitation, a plan or system that involves any of the following:

      (a) Pension benefits, retirement benefits or other similar benefits.

      (b) Profit-sharing or any other form of participation in profits, revenues, securities, capital or assets.

      (c) Industrial insurance, workers’ compensation or other similar benefits.

      (d) Group insurance.

      10.  A partnership agreement or an agreement concerning any joint adventure, enterprise or venture.

      11.  A premarital, antenuptial or postnuptial agreement, a marriage contract or settlement or any other similar agreement, contract or settlement.

      12.  Any instrument that declares a homestead pursuant to chapter 115 of NRS.

      13.  Any other dispositive, appointive, nominative or declarative instrument.

      (Added to NRS by 1999, 1349; A 2011, 1417)

      NRS 41B.100  “Interest” defined.  “Interest” means:

      1.  Any interest, in whole or in part, in any property or estate, whether such interest is legal or equitable, present or future, or contingent or vested;

      2.  A right, power or privilege to appoint, consume, exercise, transfer or use any such interest; or

      3.  Any other right, power or privilege relating to any such interest.

      (Added to NRS by 1999, 1350)

      NRS 41B.110  “Interested person” defined.  “Interested person” means:

      1.  A parent, spouse, child or sibling of a decedent;

      2.  A beneficiary or a person who would be a beneficiary if another person were found to be a killer of a decedent;

      3.  A person who serves in any fiduciary or representative capacity with respect to any property, interest or benefit that is in any way related to a decedent, the decedent’s estate or a governing instrument or a person who would be entitled to serve in such a capacity if another person were found to be a killer of a decedent; or

      4.  A person who has a right to or claim against any property, interest or benefit that is in any way related to a decedent, the decedent’s estate or a governing instrument or a person who would have such a right or claim if another person were found to be a killer of a decedent.

      (Added to NRS by 1999, 1350)

      NRS 41B.120  “Joint tenants with right of survivorship” defined.  “Joint tenants with right of survivorship” means two or more persons who hold any property, interest or benefit under circumstances that entitle one or more of the persons to the whole of the property, interest or benefit on the death of one or more of the other persons.

      (Added to NRS by 1999, 1350)

      NRS 41B.130  “Killer” defined.  “Killer” means a person who is deemed to be a killer of a decedent pursuant to NRS 41B.250 or 41B.260.

      (Added to NRS by 1999, 1350)

      NRS 41B.140  “Payor” defined.  “Payor” means a person who is authorized or obligated by law or a governing instrument to pay or transfer any property, interest or benefit to another person.

      (Added to NRS by 1999, 1350)

      NRS 41B.150  “Person” defined.  “Person” means any of the following:

      1.  A natural person.

      2.  Any form of business or social organization and any other nongovernmental legal entity, including, without limitation, a corporation, partnership, association, trust or unincorporated organization.

      3.  A government, a political subdivision of a government or an agency or instrumentality of a government or a political subdivision of a government.

      (Added to NRS by 1999, 1350)

      NRS 41B.160  “Property” defined.  “Property” means anything that may be the subject of ownership, including, without limitation, any real or personal property or any estate in such property.

      (Added to NRS by 1999, 1351)

APPLICABILITY OF CHAPTER

      NRS 41B.200  General rule; killer cannot profit or benefit from wrong; anti-lapse statute and right of representation; contingent, residuary and other beneficiaries; common law.

      1.  Notwithstanding any other provision of law, the provisions of this chapter apply to any appointment, nomination, power, right, property, interest or benefit that accrues or devolves to a killer of a decedent based upon the death of the decedent. If any such appointment, nomination, power, right, property, interest or benefit is not expressly covered by the provisions of this chapter, it must be treated in accordance with the principle that a killer cannot profit or benefit from his or her wrong.

      2.  The provisions of this chapter do not abrogate or limit the application of:

      (a) The anti-lapse provisions of NRS 133.200 or the right of representation, as defined and applied in chapter 134 of NRS, with respect to a person who is not a killer of the decedent; or

      (b) Any provision of a governing instrument that designates:

             (1) A contingent or residuary beneficiary who is not a killer of the decedent; or

             (2) Any other beneficiary who is not a killer of the decedent.

      3.  The provisions of this chapter do not abrogate or limit any principle or rule of the common law, unless the principle or rule is inconsistent with the provisions of this chapter.

      (Added to NRS by 1999, 1351)

      NRS 41B.210  Acts constituting felonious and intentional killing; insanity or diminished capacity.  For the purposes of this chapter:

      1.  A killing is “felonious” if it is committed without legal excuse or justification.

      2.  A killing is “intentional” if it is caused by or occurs during the commission of any act which involves a degree of culpability that is greater than criminal negligence.

      3.  Insanity or diminished capacity shall be deemed not to be a legal excuse or justification and must not be considered in determining whether a killing is felonious or intentional.

      (Added to NRS by 1999, 1351)

PROCEEDINGS

      NRS 41B.250  Criminal action: Conclusive effect of judgment of conviction; admissibility of judgment of conviction in civil action.

      1.  If a court in this state or any other jurisdiction enters a judgment of conviction against a person in which the person is found to have been a culpable actor in the felonious and intentional killing of a decedent:

      (a) The conviction conclusively establishes for the purposes of this chapter that the person feloniously and intentionally killed the decedent; and

      (b) The person shall be deemed to be a killer of the decedent.

      2.  Notwithstanding the provisions of NRS 48.125 or 51.295 or any other provision of law, a judgment of conviction described in subsection 1, including, without limitation, a judgment of conviction based upon a plea of nolo contendere, is admissible in any civil action brought pursuant to the provisions of this chapter.

      3.  For the purposes of this section:

      (a) A court in “any other jurisdiction” includes, without limitation, a tribal court or a court of the United States or the Armed Forces of the United States.

      (b) A court “enters” a judgment of conviction against a person on the date on which guilt is admitted, adjudicated or found, whether or not:

             (1) The court has imposed a sentence, a penalty or other sanction for the conviction; or

             (2) The person has exercised any right to appeal the conviction.

      (c) A killing in this state that constitutes murder of the first or second degree, as defined in NRS 200.010, 200.020 and 200.030, or voluntary manslaughter, as defined in NRS 200.040, 200.050 and 200.060, shall be deemed to be a felonious and intentional killing.

      (Added to NRS by 1999, 1351)

      NRS 41B.260  Civil action: Parties; burden of proof; evidence; stay of proceedings; limitation on time for commencement.

      1.  For the purposes of this chapter, an interested person may bring a civil action alleging that a person was a culpable actor in the felonious and intentional killing of a decedent. An interested person may bring such a civil action whether or not any person who is alleged to be a killer in the civil action or any other person is or has been, in a separate criminal action, charged with or convicted or acquitted of being:

      (a) A culpable actor in the felonious and intentional killing of the decedent; or

      (b) A culpable actor in any other offense arising out of the facts surrounding the killing of the decedent.

      2.  If an interested person brings a civil action pursuant to this section, the court shall determine, by a preponderance of the evidence, whether a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent. If the court finds by a preponderance of the evidence that a person who is alleged to be a killer of the decedent was a culpable actor in the felonious and intentional killing of the decedent:

      (a) The finding of the court conclusively establishes for the purposes of this chapter that the person feloniously and intentionally killed the decedent; and

      (b) The person shall be deemed to be a killer of the decedent.

      3.  If, in a separate criminal action, a person is charged with being a culpable actor in the felonious and intentional killing of a decedent or with any other offense arising out of the facts surrounding the killing of the decedent and:

      (a) The person is acquitted of the charge;

      (b) The charge is dismissed; or

      (c) A verdict or judgment is not reached or entered on the charge for any reason,

Ê evidence concerning any such matter is not admissible in a civil action brought pursuant to this section.

      4.  Upon its own motion or the motion of an interested person, the court may, in whole or in part, stay the proceedings in a civil action brought pursuant to this section during the pendency of any separate criminal action that has been brought against a person who is alleged to be a killer in the civil action. The provisions of this subsection do not limit the power of the court to stay the proceedings in the civil action for any other reason.

      5.  A civil action described in this section may not be commenced by an interested person more than 5 years after the interested person discovers or through the use of reasonable diligence should have discovered the material facts that constitute the cause of action.

      (Added to NRS by 1999, 1352)

SCOPE OF FORFEITURE

      NRS 41B.300  Estate of decedent.

      1.  A killer of a decedent forfeits any appointment, nomination, power, right, property, interest or benefit that, pursuant to the provisions of title 12 of NRS or the common law, accrues or devolves to the killer from or through the estate of the decedent, including, without limitation:

      (a) An intestate share.

      (b) An elective share.

      (c) The share of an omitted spouse or child.

      (d) A family allowance.

      (e) A homestead allowance.

      (f) Any exempt property.

      2.  The intestate estate of the decedent passes as if the killer had predeceased the decedent, and any other appointment, nomination, power, right, property, interest or benefit described in subsection 1 must be treated as if the killer had predeceased the decedent.

      (Added to NRS by 1999, 1353)

      NRS 41B.310  Governing instruments.

      1.  Except as otherwise provided in NRS 41B.320, a killer of a decedent forfeits any appointment, nomination, power, right, property, interest or benefit that, pursuant to the provisions of a governing instrument executed by the decedent or any other person, accrues or devolves to the killer based upon the death of the decedent.

      2.  In addition to any forfeiture required by subsection 1, if a governing instrument provides for the payment of certain benefits only upon the death of a decedent, a killer of the decedent forfeits any right or interest that the killer is entitled to assert against those benefits on the basis that community property was used, in whole or in part, to purchase the governing instrument or to pay one or more contributions or premiums that were related to the governing instrument.

      3.  If a killer of a decedent forfeits any appointment, nomination, power, right, property, interest or benefit pursuant to this section, the provisions of each governing instrument affected by the forfeiture must be treated as if the killer had predeceased the decedent.

      (Added to NRS by 1999, 1353)

      NRS 41B.320  Community property with right of survivorship and joint tenants with right of survivorship.

      1.  A killer of a decedent forfeits any right of survivorship in property that, at the time of the killing, was held by the decedent and the killer as community property with right of survivorship or as joint tenants with right of survivorship.

      2.  If a killer forfeits any right of survivorship pursuant to subsection 1:

      (a) The respective interests in the property held by the decedent and the killer:

             (1) Shall be deemed to be severed and transformed into tenancies in common; and

             (2) Are presumed to be undivided equal interests in the property, unless a personal representative of the decedent establishes that the contributions made by the decedent concerning the property exceeded the contributions made by the killer; and

      (b) The interest of the decedent passes as the separate property of the decedent and as if the killer had predeceased the decedent.

      (Added to NRS by 1999, 1353)

      NRS 41B.330  Action for wrongful death.

      1.  A killer of a decedent may not:

      (a) Bring an action for wrongful death of the decedent pursuant to NRS 41.085; or

      (b) Benefit in any way from such an action brought by a personal representative of the decedent.

      2.  Each person who may bring or benefit from an action for wrongful death of the decedent pursuant to NRS 41.085 must be determined as if the killer had predeceased the decedent.

      (Added to NRS by 1999, 1354)

LIABILITY

      NRS 41B.400  Payor or other third person who pays or transfers forfeited property, interest or benefit.  Except as otherwise provided by specific statute, if a payor or other third person, in good faith, pays or transfers any property, interest or benefit to a beneficiary in accordance with the provisions of a governing instrument, the payor or other third person is not liable to another person who alleges that the payment or transfer to the beneficiary violated the provisions of this chapter unless, before the payment or transfer, the payor or other third person had actual knowledge that the beneficiary was prohibited from acquiring or receiving the property, interest or benefit pursuant to the provisions of this chapter.

      (Added to NRS by 1999, 1354)

                NRS 41B.410  Person who acquires or receives forfeited property, interest or benefit without legal right or authorization.

      1.  Except as otherwise provided in subsection 2, if a person, without legal right or authorization, acquires or receives any property, interest or benefit forfeited by a killer pursuant to the provisions of this chapter, the person is required to transfer the property, interest or benefit to the beneficiary who is entitled to it pursuant to the provisions of this chapter, or the person is liable to such beneficiary for the value of the property, interest or benefit.

      2.  The provisions of subsection 1 do not apply to a person who:

      (a) Acquired the property, interest or benefit for value and without notice; or

      (b) Received the property, interest or benefit in full or partial satisfaction of a legally enforceable obligation and without notice.

      (Added to NRS by 1999, 1354)

                NRS 41B.420  Killer who transfers forfeited property, interest or benefit to third person; effect of preemption by federal law.

      1.  If a killer, for value or otherwise, transfers to a third person any property, interest or benefit forfeited by the killer pursuant to the provisions of this chapter, the killer is required to recover and transfer the property, interest or benefit to the beneficiary who is entitled to it pursuant to the provisions of this chapter, or the killer is liable to such beneficiary for the value of the property, interest or benefit.

      2.  If any federal law preempts any provision of this chapter requiring a killer to forfeit any property, interest or benefit and the property, interest or benefit accrues or devolves to the killer because of the preemption, the killer is required to transfer the property, interest or benefit to the beneficiary who, in the absence of the preemption, would have been entitled to it pursuant to the provisions of this chapter, or the killer is liable to such beneficiary for the value of the property, interest or benefit.

      (Added to NRS by 1999, 1354)