12.40 Murder As A Source Of Property Rights


In General

The determination of the devolution of a title to real property as a consequence of the felonious killing of one spouse by the other spouse, or one nonspousal co-tenant by another co-tenant, or one testator by a devisee, or one decedent by an heir, is outside of the scope of title insurance and within the exclusive domain of the judiciary.

The issuance of any title insurance policy covering property rights that arise as a direct consequence of the felonious killing of the owner of the property must be based exclusively on a final and nonappealable determination of a court of competent jurisdiction.  Do not rely on any statutory or constitutional provision or prior case law for the purpose of ascertaining any new vesting of title until (1) the commission of a crime has been judicially determined (no suicide) and (2) the alleged killer has been found guilty by a court of law.


Approach of Legislations and Judicial Courts

State constitutions, legislations, and courts have based their criteria for devolution of title to real property that is affected by the possible rights of a killer to the victim's estate upon three distinct philosophical approaches. The approaches can be summarized as follows:

  • "Crime Pays"--Killer acquires the entire estate.

  • "Crime Doesn't Pay"--Killer acquires nothing.

  • "Crime Partially Pays"--Killer acquires less than the entire estate.

In Texas upon conviction for murder of a spouse or co-owner, and upon application by a family member of the deceased, the court can divest the murderer of title.

Please note that the Court can only divest the interest of the deceased person and not that of the murderer.


Title Insurance Considerations

The following are the main factors to be considered in how the insurance of a title is affected by the murder of its holder:

  • Has the alleged killer been convicted? Any person is presumed to be innocent until proven guilty by a court of law.

  • Is there any constitutional or state law provision or case law in reference to this matter?

  • Has there been any specific judicial determination of the title to the property in light of the killing of the owner?

  • Does the judicial determination, if any, contravene any constitutional or state law provision?

  • Has the judicial process been fully terminated? Is there any right to appeal?

  • In the event of a killing-suicide situation, can the provisions of the jurisdictional simultaneous death act be applicable?

  • In the event of a killing-suicide situation, is there also a husband and wife relationship?

  • In the event of a killing-suicide situation between spouses, do all the children belong to the same marriage?

  • Is it possible to avoid a judicial determination through the execution and recording of proper conveyances from ALL parties with possible adversary interests in the property?


How to Vest the Title to the Property in the Successor