Dead Man Walking or Dead Man’s Statute?

In October 2018, new statutory legislation recommended by the Irish Law Reform Commission of the country’s cabinet considered a rule that would block those found guilty of killing their domestic partner or spouse from unjust enrichment attached to financial or estate proceeds. In the United States, spousal property is customarily subject to rules of intestate succession in a probate court proceeding, when one spouse is found to have been unlawfully killed by another. If not other legitimate heirs or beneficiaries are present, spousal property part of estate assets is escheat to state coffers. In states with Dead Man Statute provision, heirs or beneficiaries may contest the last will and testament of a decedent. New York Dead Man Statute protects a decedent from a spouse making false claims in court.


Irish Estate Law and Spousal Protections

The proposal comes at a time when an Irish citizen, Eamonn Lillis received distribution of a near 1.3m euros (£1.16m) from his spouse’s estate, despite being found connected to her manslaughter. Jailed for six years between 2010 and 2015 for assault and battery of Celine Cawley, his wife, Lillis maintains the responsible party was a trespasser on their property, who had broken into the home. The proposed legislation seeks additional protections for spouses harmed by their partners; prohibiting guilty parties from any financial benefit flowing from spousal property. The Irish government is also considering statutory provision concerning cases where a spouse has aided or abetted in the murder or manslaughter of their partner. To present, Irish law has not prohibited claimants who have commissioned unlawful killings of their spouse from inheriting joint assets (i.e.  co-owed property); as seen in the High Court decision in favor of Lillis’ claim.


Across the Atlantic: “Dead Man’s Statute”

The definition of “Dead Man’s Statute” within U.S. federal law applies to cases involving claims made by, or against a decedent’s estate after their death. The intent of this statutory provision is to protect a decedents’ estates from false claims, including perjury by a claimant in court. Long criticized for ignoring the claims of the living, the incorporation of this statute within twenty U.S. states, including New York, exhibits the significance of the statute in court determination of the admissibility of evidence related to transactions.  


Incorporated into state law in 1851, New York’s Dead Man’s Statute CPLR § 4519 concern acts of perjury in claims of self-interest during civil court testimony “where the witness had a pecuniary interest” in the case. The Dead Man’s Statute supplies exception to the hearsay rule, and informs application of the Federal Rules of Evidence (FRE) Rule 601 at the state-level. The rue also establishes a pedigree for a claimant “witness” or the decedent in a Wills contest.


New York Dead Man Statute: Exceptions

There are two (2) common exceptions to New York Dead Man’s Statute corresponding to estate litigation matters where:

  • An estate evidences or contests an interested witness/beneficiary of an estate about communications with the decedent about a bequest; and/or
  • An estate fails to object or file counter-complaint in a will contest matter; forfeiting the right to the Dead Man’s Statute defense.


In New York, the Dead Man’s Statute serves to protect the interests of a decedent, their estate, its heirs from unsubstantiated claims made by a claimant, including a spouse responsible for their death. Estate preparation makes it more difficult for a claimant to file a contest of Wills.


Ask a license attorney about how to protect an estate from false claims after a decedent’s death.  


Estate Law Attorney Practice

Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate law matter.      

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