The District IV appellate court in In re Estate of Schunk, Jr. (No. 2007AP2680, Slip Copy, 2008 WL 4348616, Wis. Ct. App. Sept. 25, 2008) dealt with the novel issue of whether that state’s slayer statute, Wisconsin Statute Section 854.14, applies in the context of assisted suicide.

The appellate court found that the circuit court correctly interpreted the meaning of the phrase “unlawful and intentional killing” in the Wisconsin slayer statute as not encompassing assisting another person in committing suicide.

The holding cleared the way for the decedent’s wife and youngest daughter to inherit the majority of the decedent’s $500,000 estate—pursuant to the terms of his will.

The decedent, Edward J. Schunk, Jr., was terminally ill with non-Hodgkin’s lymphoma. Although he’d been hospitalized, his doctor allowed him to leave the hospital for one day to see his home and dogs one final time.

Edward’s wife, Linda, and their youngest daughter, Megan, brought him home from the hospital.

The decedent was found later that day in a cabin on his property, dead from a self-inflicted gunshot wound.

Five of the decedent’s older children—Linda’s stepchildren who apparently received little or nothing under Edward’s will—objected in the probate administration of the will.

They claimed that Linda and Megan assisted Edward in committing suicide by driving him to his cabin, helping him inside, giving him a loaded shotgun and leaving him alone when they knew that his mental state was fragile.

The five older children argued that Linda and Megan were barred by the Wisconsin slayer statute from inheriting under Edward’s will.

Wisconsin’s law provides in relevant part that the “unlawful and intentional killing of the decedent . . . [r]evokes a provision in a governing instrument that, by reason of the decedent’s death . . . [t]ransfers or appoints property to the killer.” For purposes of its decision (which was a ruling on motions for summary judgment filed by Linda and Megan), the court assumed that Linda and Megan had assisted Edward in committing suicide. The question, therefore, was whether this assistance constituted an “unlawful and intentional killing” of Edward within the meaning of the slayer statute.

In construing the meaning of the phrase “unlawful and intentional killing,” the appellate court determined that the plain meaning of that phrase does not include assisting a decedent in committing suicide. The court noted that the first definition of the verb “to kill” listed in Webster’s Dictionary is “to deprive of life.” Applying this definition, the court concluded, “As the assumed facts in this case illustrate, providing Edward with a loaded shotgun did not deprive him of his life: he deprived himself of life by shooting himself with the shotgun.”

The five stepkids were unsuccessful because assisted suicide does not fit the “unlawful and intentional killing” requirement under Wisconsin’s slayer statute.

But their attempt to extend the statute to assisted suicide certainly was creative.

—Trusts & Estates Associate Editor Carolyn A. Chandler contributed to this article.