2005 Nevada Revised Statutes - Chapter 41B — Action Against Killer of Decedent for Forfeiture of Certain Property, Benefits and Rights

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

GENERAL PROVISIONS

NRS 41B.010 Definitions.

NRS 41B.020 Acquitteddefined.

NRS 41B.030 Agentdefined.

NRS 41B.040 Beneficiarydefined.

NRS 41B.050 Communityproperty defined.

NRS 41B.060 Communityproperty with right of survivorship defined.

NRS 41B.070 Convictedand conviction defined.

NRS 41B.080 Culpableactor in the felonious and intentional killing of a decedent defined.

NRS 41B.090 Governinginstrument defined.

NRS 41B.100 Interestdefined.

NRS 41B.110 Interestedperson defined.

NRS 41B.120 Jointtenants with right of survivorship defined.

NRS 41B.130 Killerdefined.

NRS 41B.140 Payordefined.

NRS 41B.150 Persondefined.

NRS 41B.160 Propertydefined.

APPLICABILITY OF CHAPTER

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

NRS 41B.210 Actsconstituting felonious and intentional killing; insanity or diminishedcapacity.

PROCEEDINGS

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

NRS 41B.260 Civilaction: Parties; burden of proof; evidence; stay of proceedings; limitation ontime for commencement.

SCOPE OF FORFEITURE

NRS 41B.300 Estateof decedent.

NRS 41B.310 Governinginstruments.

NRS 41B.320 Communityproperty with right of survivorship and joint tenants with right ofsurvivorship.

NRS 41B.330 Actionfor wrongful death.

LIABILITY

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

NRS 41B.410 Personwho acquires or receives forfeited property, interest or benefit without legalright or authorization.

NRS 41B.420 Killerwho transfers forfeited property, interest or benefit to third person; effectof preemption by federal law.

_________

GENERAL PROVISIONS

NRS 41B.010 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS41B.020 to 41B.160, inclusive,have the meanings ascribed to them in those sections.

(Added to NRS by 1999, 1348)

NRS 41B.020 Acquitteddefined. 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 Agentdefined. Agent means a person who is authorizedto 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 personwho is authorized pursuant to the provisions of a governing instrument to makedecisions concerning the provision of health care to another person.

(Added to NRS by 1999, 1348)

NRS 41B.040 Beneficiarydefined. Beneficiary means a person who isentitled to accrue, acquire or receive any property, interest or benefitpursuant to the provisions of a governing instrument or the laws of intestatesuccession.

(Added to NRS by 1999, 1348)

NRS 41B.050 Communityproperty defined. Community property hasthe meaning ascribed to it in NRS 123.220.

(Added to NRS by 1999, 1348)

NRS 41B.060 Communityproperty with right of survivorship defined. Communityproperty with right of survivorship means community property in which a rightof survivorship exists pursuant to NRS111.064 or 115.060 or any otherprovision of law.

(Added to NRS by 1999, 1349)

NRS 41B.070 Convictedand conviction defined. Convicted andconviction mean a judgment based upon:

1. A plea of guilty or nolo contendere;

2. A finding of guilt by a jury or a court sittingwithout a jury;

3. An adjudication of delinquency or finding of guiltby a court having jurisdiction over juveniles; or

4. Any other admission or finding of guilt in acriminal action or a proceeding in a court having jurisdiction over juveniles.

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

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

1. Causes or perpetrates the felonious and intentionalkilling of the decedent;

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

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

(Added to NRS by 1999, 1349)

NRS 41B.090 Governinginstrument defined. Governing instrumentmeans any of the following:

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

2. An annuity or a policy of insurance.

3. A trust, whether created by an instrument executedduring the life of the settlor, a testamentary instrument or any otherinstrument, judgment or decree, including, without limitation, any of thefollowing:

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

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

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

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

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

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

6. A security registered as transferable on the deathof a person or a security registered in beneficiary form pursuant to NRS 111.480 to 111.650, inclusive.

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

8. Any instrument that appoints or nominates a personto serve in any fiduciary or representative capacity, including, withoutlimitation, an agent, guardian, executor, personal representative or trustee.

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

(a) Pension benefits, retirement benefits or othersimilar benefits.

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

(c) Industrial insurance, workers compensation orother similar benefits.

(d) Group insurance.

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

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

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

13. Any other dispositive, appointive, nominative ordeclarative instrument.

(Added to NRS by 1999, 1349)

NRS 41B.100 Interestdefined. Interest means:

1. Any interest, in whole or in part, in any propertyor estate, whether such interest is legal or equitable, present or future, orcontingent 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 anysuch interest.

(Added to NRS by 1999, 1350)

NRS 41B.110 Interestedperson defined. Interested person means:

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

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

3. A person who serves in any fiduciary orrepresentative capacity with respect to any property, interest or benefit thatis in any way related to a decedent, his estate or a governing instrument or aperson who would be entitled to serve in such a capacity if another person werefound to be a killer of a decedent; or

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

(Added to NRS by 1999, 1350)

NRS 41B.120 Jointtenants with right of survivorship defined. Jointtenants 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 personsto the whole of the property, interest or benefit on the death of one or moreof the other persons.

(Added to NRS by 1999, 1350)

NRS 41B.130 Killerdefined. Killer means a person who is deemedto be a killer of a decedent pursuant to NRS41B.250 or 41B.260.

(Added to NRS by 1999, 1350)

NRS 41B.140 Payordefined. Payor means a person who isauthorized or obligated by law or a governing instrument to pay or transfer anyproperty, interest or benefit to another person.

(Added to NRS by 1999, 1350)

NRS 41B.150 Persondefined. Person means any of the following:

1. A natural person.

2. Any form of business or social organization and anyother nongovernmental legal entity, including, without limitation, acorporation, partnership, association, trust or unincorporated organization.

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

(Added to NRS by 1999, 1350)

NRS 41B.160 Propertydefined. Property means anything that may bethe subject of ownership, including, without limitation, any real or personalproperty or any estate in such property.

(Added to NRS by 1999, 1351)

APPLICABILITY OF CHAPTER

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

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

2. The provisions of this chapter do not abrogate orlimit 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 thatdesignates:

(1) A contingent or residuary beneficiary who isnot a killer of the decedent; or

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

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

(Added to NRS by 1999, 1351)

NRS 41B.210 Actsconstituting felonious and intentional killing; insanity or diminishedcapacity. For the purposes of this chapter:

1. A killing is felonious if it is committed withoutlegal excuse or justification.

2. A killing is intentional if it is caused by oroccurs during the commission of any act which involves a degree of culpabilitythat is greater than criminal negligence.

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

(Added to NRS by 1999, 1351)

PROCEEDINGS

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

1. If a court in this state or any other jurisdictionenters a judgment of conviction against a person in which the person is foundto have been a culpable actor in the felonious and intentional killing of adecedent:

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

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

2. Notwithstanding the provisions of NRS 48.125 or 51.295 or any other provision of law, ajudgment of conviction described in subsection 1, including, withoutlimitation, a judgment of conviction based upon a plea of nolo contendere, isadmissible in any civil action brought pursuant to the provisions of thischapter.

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 ArmedForces of the United States.

(b) A court enters a judgment of conviction against aperson on the date on which guilt is admitted, adjudicated or found, whether ornot:

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

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

(c) A killing in this state that constitutes murder ofthe first or second degree, as defined in NRS200.010, 200.020 and 200.030, or voluntary manslaughter, as definedin NRS 200.040, 200.050 and 200.060, shall be deemed to be a feloniousand intentional killing.

(Added to NRS by 1999, 1351)

NRS 41B.260 Civilaction: Parties; burden of proof; evidence; stay of proceedings; limitation ontime for commencement.

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

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

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

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

(a) The finding of the court conclusively establishesfor the purposes of this chapter that the person feloniously and intentionallykilled the decedent; and

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

3. If, in a separate criminal action, a person ischarged with being a culpable actor in the felonious and intentional killing ofa decedent or with any other offense arising out of the facts surrounding thekilling 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 onthe charge for any reason,

evidenceconcerning any such matter is not admissible in a civil action brought pursuantto this section.

4. Upon its own motion or the motion of an interestedperson, the court may, in whole or in part, stay the proceedings in a civilaction brought pursuant to this section during the pendency of any separatecriminal action that has been brought against a person who is alleged to be akiller in the civil action. The provisions of this subsection do not limit thepower of the court to stay the proceedings in the civil action for any otherreason.

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

(Added to NRS by 1999, 1352)

SCOPE OF FORFEITURE

NRS 41B.300 Estateof decedent.

1. A killer of a decedent forfeits any appointment,nomination, power, right, property, interest or benefit that, pursuant to theprovisions of title 12 of NRS or the common law, accrues or devolves to thekiller from or through the estate of the decedent, including, withoutlimitation:

(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 ifthe killer had predeceased the decedent, and any other appointment, nomination,power, right, property, interest or benefit described in subsection 1 must betreated as if the killer had predeceased the decedent.

(Added to NRS by 1999, 1353)

NRS 41B.310 Governinginstruments.

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

2. In addition to any forfeiture required bysubsection 1, if a governing instrument provides for the payment of certainbenefits only upon the death of a decedent, a killer of the decedent forfeitsany right or interest that the killer is entitled to assert against thosebenefits on the basis that community property was used, in whole or in part, topurchase the governing instrument or to pay one or more contributions or premiumsthat 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 thissection, the provisions of each governing instrument affected by the forfeituremust be treated as if the killer had predeceased the decedent.

(Added to NRS by 1999, 1353)

NRS 41B.320 Communityproperty with right of survivorship and joint tenants with right ofsurvivorship.

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

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

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

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

(2) Are presumed to be undivided equal interestsin the property, unless a personal representative of the decedent establishesthat the contributions made by the decedent concerning the property exceededthe contributions made by the killer; and

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

(Added to NRS by 1999, 1353)

NRS 41B.330 Actionfor wrongful death.

1. A killer of a decedent may not:

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

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

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

(Added to NRS by 1999, 1354)

LIABILITY

NRS 41B.400 Payoror other third person who pays or transfers forfeited property, interest orbenefit. Except as otherwise provided byspecific statute, if a payor or other third person, in good faith, pays ortransfers any property, interest or benefit to a beneficiary in accordance withthe provisions of a governing instrument, the payor or other third person isnot liable to another person who alleges that the payment or transfer to thebeneficiary violated the provisions of this chapter unless, before the paymentor transfer, the payor or other third person had actual knowledge that thebeneficiary was prohibited from acquiring or receiving the property, interestor benefit pursuant to the provisions of this chapter.

(Added to NRS by 1999, 1354)

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

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

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

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

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

(Added to NRS by 1999, 1354)

NRS 41B.420 Killer who transfers forfeitedproperty, interest or benefit to third person; effect of preemption by federallaw.

1. If a killer, for value or otherwise, transfers to athird person any property, interest or benefit forfeited by the killer pursuantto the provisions of this chapter, the killer is required to recover andtransfer the property, interest or benefit to the beneficiary who is entitledto it pursuant to the provisions of this chapter, or the killer is liable tosuch beneficiary for the value of the property, interest or benefit.

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

(Added to NRS by 1999, 1354)

 

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