Unpublished Disposition, 908 F.2d 977 (9th Cir. 1989)

MEMORANDUM^** 

Paul A. Rupe, a California prisoner convicted of murdering his wife, appeals a summary judgment awarding his children, Nicole C. Rupe, Melissa R. Rupe, and Joshua P. Rupe, the proceeds of a Metropolitan Life Insurance Company group policy. We affirm.

Natalie Rupe was insured under a group life insurance policy issued by Metropolitan under the Federal Employees Group Life Insurance Act (FEGLIA), 5 U.S.C. §§ 8701-16. At the time of her death, she had not designated a beneficiary. Section 8705(a) of the statute provides that where an insured fails to designate a beneficiary, the proceeds are payable to the insured's widow or widower or, if the insured is not survived by a spouse, to the insured's children. 5 U.S.C. § 8705(a). We look to state law to define "widower" for purposes of the FEGLIA. See Metropolitan Life Ins. Co. v. Manning, 568 F.2d 922, 926 (2d Cir. 1977) ("widower" means "lawful widower") (emphasis supplied); De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (while the scope of a federal right may be a federal question, "that does not mean that its content is not to be determined by state, rather than federal, law.")

Section 252 of the California Probate Code provides that a named beneficiary of an insurance policy who feloniously and intentionally kills the insured may not obtain any benefits under a life insurance policy. See Cal.Prob.Code Sec. 252 (West Supp.1990). This policy also applies where the insured has not designated a beneficiary. See Cal Prob.Code Sec. 253; see also Wilson v. Wilson, 78 Cal. App. 3d 226, 232, 144 Cal. Rptr. 180, 183 (Cal.App.2 Dist.1978) ("any one who has deliberately and without justification killed another will not profit from his wrong.")

Section 254(a) of the California Probate Code provides that " [a] final judgment of conviction of felonious and intentional killing is conclusive [proof to prevent a beneficiary from receiving insurance proceeds.]" Cal.Prob.Code Sec. 254(a). Rupe was convicted in California state court of first degree murder for killing Natalie. His conviction was affirmed by the California Court of Appeals and became final on January 20, 1989. California law precludes his claim to the proceeds of Natalia's insurance policy.

Rupe contends that his criminal trial was constitutionally infirm and that the district court erred in relying upon it for proof of conviction. His attempt to turn this issurance case into a collateral attack upon his murder conviction is unavailing. Because California law provides that a final conviction of feloneous and intentional killing is conclusive proof for purposes of sections 252 and 253, the sole issue is whether Rupe's conviction was final. Rupe does not challenge the finality of his murder conviction. Moreover, the recent filing of a habeas corpus petition in Rupe's criminal case does not disturb the finality of that conviction. See Teague v. Lane, 109 S. Ct. 1060, 1072-72 (1989). Rupe has therefore failed to establish a genuine issue of material fact on this question.

Finally, because insurance benefits in this situation become payable as if Rupe predeceased Natalie, see Cal.Prob.Code Sec. 253, the district court correctly concluded that the children are entitled to the proceeds.

Summary judgment in favor of the children is AFFIRMED.