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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Riddell v. Edwards (9/5/2003) sp-5733

Riddell v. Edwards (9/5/2003) sp-5733

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

ROBERT J. RIDDELL,            )
                              )    Supreme Court No. S-10025
               Appellant,          )
                              )    Superior Court No.
          v.                  )    1KE-97-154 PR
                              )
IRVIN H. EDWARDS,             )    O P I N I O N
                              )
                Appellee.      )         [No. 5733 - September 5,
2003]
                                                                )

          Appeal  from the Superior Court of the  State
          of    Alaska,   First   Judicial    District,
          Ketchikan, Larry R. Weeks, Judge.

          Appearances:  Robert J. Riddell, pro se, Ward
          Cove.   Bryan  T.  Schulz, Holman  &  Schulz,
          Ketchikan, for Appellee (no brief filed).

          Before:   Fabe,   Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.
          CARPENETI, Justice, dissenting.

I.   INTRODUCTION

           In  a  probate proceeding involving the estate of  his

deceased wife, Robert J. Riddell petitioned as a surviving spouse

to  receive  his statutory homestead allowance, family allowance,

and   elective   share.   Despite  finding   that   Riddell   had

"ingratiated himself" to his wife before their marriage "for  the

purpose[] of obtaining her assets" and that his wife had suffered

from  dementia  for  the  majority  of  their  relationship,  the

superior  court ruled that Riddell and his wife had been  validly

married  and  that the estate had no standing to argue  that  the

marriage  was  voidable.   The court nonetheless  concluded  that

Riddell's   unconscionable  conduct  warranted   establishing   a

constructive  trust  to  give  the  estate  Riddell's   statutory

benefits.  Because the superior court's finding that the marriage

was  valid is not disputed and because Alaska law unconditionally

gives  the  surviving  spouse of a valid marriage  the  right  to

marital allowances and a share of the estate based solely on  the

existence  of  a  valid  marriage, we  hold  that  the  necessary

elements   for  a  constructive  trust  are  lacking   and   that

establishing the trust exceeded the court's equitable powers.  We

thus  vacate  the  trust and remand with directions  to  fix  the

amount of Riddell's statutory benefits.

II.  FACTS AND PROCEEDINGS

           In  December 1993 Lillie Rahm-Riddell, who was in  her

early  nineties,  met  Robert J. Riddell, who  was  in  his  mid-

sixties.   Riddell ingratiated himself to Lillie and  became  her

handyman.   He soon moved in with her and started to isolate  her

from her family and friends.  Riddell married Lillie in Ketchikan

in  May  1995,  while guardianship proceedings  were  pending  to

determine   Lillie's  competency  to  manage  her  personal   and

financial affairs.  Those proceedings resulted in the appointment

of  the  Public Guardian as Lillie's primary conservator; several

months  later,  prompted  by reports of  domestic  violence,  the

superior   court  entered  an  order  restraining  Riddell   from

contacting  Lillie.  Lillie moved to an assisted-living  home  in

Washington  state.  Riddell spirited her away from the  home  and

took  her to Oregon, where they lived together until Lillie  died

in September 1997.  The entire time that Lillie knew Riddell, she

suffered from Alzheimer's disease and/or senile dementia.1

           Lillie's  brother,  Irvin  H.  Edwards,  accepted  the

superior  court's appointment as personal representative  of  her

estate.   Ensuing  litigation  between  the  estate  and  Riddell

generated  three appeals.  In the first appeal, we  affirmed  the

superior  court's  order invalidating for  lack  of  testamentary

capacity  a  will that Lillie executed shortly before  her  death

leaving  her  entire  estate  to Riddell.2   In  the  second,  we

affirmed the superior court's order denying creditor claims  that

Riddell filed against the estate seeking compensation for alleged

premarital and marital services to Lillie.3

           The  third appeal, which we now consider, arises  from

two  related  superior  court  orders:  (1)  an  order  declaring

Lillie's  marriage to Riddell valid and finding Riddell  eligible

as  Lillie's  surviving spouse to claim his statutory  rights  to

allowances  and  share; and (2) a subsequent order,  based  on  a

finding   of   fraudulent  conduct  by  Riddell  toward   Lillie,

establishing  a  constructive trust  in  the  estate's  favor  to

receive Riddell's payments of allowances and share.  Our decision

requires us to describe these orders in considerable detail.

          In the course of the probate proceedings, after Riddell

petitioned  for his statutory allowances and share, the  superior

court  ordered briefing and conducted a hearing to determine  the

validity  of  the marriage.  The estate sought to invalidate  the

marriage,  arguing that it was voidable because Lillie  had  been

incompetent  and Riddell had fraudulently induced  her  to  enter

into  the  marriage.   Following the hearing, the court issued  a

thoughtful and carefully reasoned decision that found  clear  and

convincing evidence of Riddell's fraudulent conduct toward Lillie

but  nevertheless rejected the estate's challenge to the marriage

and declared Riddell eligible to claim allowances and share.

           The superior court began its decision by unequivocally

recognizing  the  compelling  evidence  of  Riddell's  misconduct

toward Lillie:

                A  review of the prior evidence and the
          new   evidence  leaves  no  question  to  any
          objective  observer by clear  and  convincing
          evidence  Mr. Riddell ingratiated himself  to
          [Lillie]  for  the purposes of obtaining  her
          assets.  She was suffering from dementia, was
          alone and lonely and he did small things  for
          her  in  a  way  that kept  her  from  making
          decisions that she would have made  when  she
          was  fully  competent.  He  isolated  her  by
          changing  her  phone,  bullying  family   and
          friends that were old and frail themselves in
          such  a  way  that they were not able  to  be
          supportive of her.
          
                Three  separate court actions involving
          injunctions under the Domestic Violence  law,
          a  conservatorship  and a  guardianship  were
          filed.   Lawyers, a conservator, a  temporary
          guardian   and  a  guardian  ad  litem   were
          appointed for [Lillie].  Mr. Riddell defeated
          them  all.  In his own words, he and [Lillie]
          sneaked  to Juneau to get a marriage  license
          and  got married secretly in Ketchikan  while
          conservator proceedings were pending.
          
                 Mr.   Riddell  physically  intimidated
          friends, family, lawyers and caregivers.   He
          spirited [Lillie] away from the nursing  home
          in  Washington and kept her from  authorities
          despite attempts to locate her by lawyers,  a
          private investigator and court orders that he
          disclose her whereabouts.
          
                Mr. Riddell provided [Lillie] with  the
          attention she craved and did small things for
          her  that  made  her life  better.   He  also
          abused  her physically and cut her  off  from
          her  friends  and  family  so  that  she  was
          utterly dependent upon him for all her needs.
          
           But  the court also recognized that this evidence  did

not  necessarily render Lillie's marriage invalid.   Noting  that

"[p]ersons  suffering from dementia have fluctuating  periods  of

more  contact  with  reality  and ability  to  cope,"  the  court

reviewed  the  evidence and found credible  testimony  indicating

that Lillie was competent and understood the consequences of  her

actions  at  the time that she married Riddell.  In  the  court's

view,  then,  the  evidence did not convincingly  prove  Lillie's

incompetence  when  she  entered into the marriage:  "this  court

cannot  say that at the time she applied for the marriage license

or  when  she actually participated in the ceremony she  did  not

understand that she was getting married."

          The superior court then proceeded to consider the legal

significance  of this finding; in so doing, it drew an  important

distinction  between marriages that are void and those  that  are

merely  voidable.   The court noted that, in  AS  25.24.020,  the

Alaska Legislature defined a narrow class of marriages as legally

void.  That statute provides:

          A  marriage  which is prohibited  by  law  on
          account of consanguinity between the persons,
          or  a  subsequent  marriage contracted  by  a
          person during the life of a former husband or
          wife which marriage has not been annulled  or
          dissolved is void.
          
           In  contrast,  the  court pointed  out,  AS  25.24.030

defines a broader class of marriages as voidable.  Alaska Statute

25.24.030 provides:

          A  marriage may be declared void for  any  of
          the following causes existing at the time  of
          the marriage:
          
          (1)  [under the age of legal consent];
          
          (2)   that either party was of unsound  mind,
          unless  that party, after coming  to  reason,
          freely  cohabited with the other  as  husband
          and wife;
          
          (3)   that  the consent of either  party  was
          obtained   by   fraud,  unless   that   party
          afterwards, with full knowledge of the  facts
          constituting the fraud, freely cohabited with
          the other as husband and wife;
          
          (4)   that  the consent of either  party  was
          obtained   by   force,  unless   that   party
          afterwards freely cohabited with the other as
          husband and wife;
          
          (5)  [failure to consummate].
          
           The  court further noted an early Oregon Supreme Court

decision4 construing statutory provisions similar to Alaska's  to

allow  a marriage to be declared void on the ground of incapacity

only when the party lacked capacity to understand the transaction

and  its quality and consequences.  And the court also emphasized

the  legislature's intent to allow a challenge under this broader

class of voidable marriages to be brought only by a party to  the

marriage; AS 25.05.031 unequivocally states the limitation:

          If either party to a marriage is incapable of
          consenting to it at the time of the  marriage
          for  want  of marriageable age of consent  or
          sufficient  understanding, or if the  consent
          of  either  party  is obtained  by  force  or
          fraud, or if either party fails to consummate
          the  marriage, the marriage is  voidable  but
          only  at  the  suit of the  party  under  the
          disability or upon whom the force or fraud is
          imposed.
          
Given  this  statute,  the court concluded that  "[t]he  personal

representative of the estate may not bring a suit  regarding  the

voidability  of  a marriage on . . . behalf of a  party  under  a

disability after that party has died."

           After  surveying  cases from other jurisdictions,  the

superior court further determined that Alaska's statutory  scheme

reflects  the  majority  view, which the court  characterized  as

precluding the personal representative of a deceased spouse  from

challenging the validity of the spouse's marriage in the  absence

of  either  an  express statutory provision allowing  post-mortem

challenges or gross fraud coupled with mental disability.

           Applying  this  analysis,  then,  the  superior  court

examined the circumstances of the case at issue here to determine

whether  they established that Lillie's marriage was either  void

under  AS  25.24.020 (as opposed to being merely  voidable  under

AS  25.24.030) or involved the kind of gross fraud that led other

jurisdictions  to entertain post-mortem claims of  invalidity  by

personal  representatives.  Because the court found the  evidence

as  a  whole  to show that Lillie "understood the nature  of  her

decision  to marry Mr. Riddell," it declined to find the marriage

void.  The court went on to consider whether the case fell within

the gross-fraud exception, which allows post-mortem challenges to

a  valid  marriage  upon  proof of gross fraud  arising  from  "a

combination of incompetence and egregious behavior."   Though  it

noted that "Mr. Riddell did isolate [Lillie] from her family  and

friends and he may have married her to obtain her property,"  the

court  found that "his conduct did not rise to the level of gross

fraud."

           Accordingly, the superior court's order  declared  the

marriage  valid  under  AS  25.24.020's  voidness  criteria   and

precluded  the  estate from challenging it under  AS  25.24.030's

provisions describing voidable marriages; on this basis the court

ruled  that  Riddell  was  Lillie's  surviving  spouse  and   was

therefore  eligible  to  claim  a  surviving  spouse's  statutory

allowances and share.

           But  the  court's  first order  merely  declared  that

Riddell was eligible to claim his statutory allowances and share;

it  did  not  actually direct the estate to  pay.   Moreover,  in

declining to allow the estate to pursue its challenge to Lillie's

marriage, the court cited and discussed Patey v. Peaslee, a  case

involving  analogous  facts in which the  New  Hampshire  Supreme

Court  construed  New  Hampshire  laws  to  preclude  a  personal

representative's  action  to  invalidate  the  deceased  spouse's

marriage  but nonetheless allowed the personal representative  to

pursue  an  equitable claim seeking to establish  a  constructive

trust  in favor of the estate.5  This discussion of Patey in  the

superior court's first order planted the seeds for the order that

followed.

           After  receiving the order declaring him  eligible  to

receive the statutory marital allowances and share, Riddell filed

a  motion seeking to enforce that order.  In response, the estate

cross-moved to establish a constructive trust requiring Riddell's

allowances  and  share  to be paid to the estate.   The  superior

court's  second  order granted the estate's  cross-motion  for  a

constructive trust.  The court preliminarily observed  that  "[a]

constructive  trust can be imposed in any case where  a  wrongful

acquisition or detention of property to which another is entitled

has   occurred."   Relying  on  its  earlier  order,  the   court

reiterated  its view that the record "leaves no question  to  any

objective  observer by clear and convincing evidence  [that]  Mr.

Riddell  ingratiated  himself to [Lillie]  for  the  purposes  of

obtaining  her assets."  And quoting Patey v. Peaslee, the  court

emphasized that its earlier order validating the marriage did not

bar the estate's request for a constructive trust:

          Although  this court was unable to  find  the
          type of gross fraud needed to invalidate  the
          marriage in its previous findings, that  does
          not mean the "exercise of equity jurisdiction
          to  impose a constructive trust with  respect
          to  property  acquired from the decedent"  is
          not warranted here.[6]
          
           After  reviewing Patey's list of relevant criteria  to

consider  in  establishing a constructive trust, the court  ruled

that,  "[b]ecause of the previous factual findings by the  court,

this   court   finds  clear  and  convincing  evidence   that   a

constructive trust is warranted."

          Riddell appeals.

III. DISCUSSION

     A.   Standard of Review

           Although we generally defer to the trial court's broad

discretion  in   balancing  equitable  principles,  we  use   our

independent  judgment for legal issues and  review  de  novo  the

court's interpretation of the law and its application of  law  to

facts.7

     B.   The Elements of a Constructive Trust

           A  constructive  trust  is an  equitable  remedy  that

becomes available upon clear and convincing proof that the  party

against whom the trust will be imposed has been unjustly enriched

by  receiving  assets that rightly belong to the party  in  whose

favor  the  trust  will  be  created.8   We  have  said  that   a

"constructive trust may be defined as a [device] used by chancery

to  compel  one who unfairly holds a property interest to  convey

that  interest to another to whom it justly belongs";  the  trust

arises  to  prevent  the property holder from retaining  property

obtained  "by  reason  of  unjust,  unconscionable,  or  unlawful

means."9  At a minimum, then, a constructive trust presupposes  a

transfer   or   holding  of  property  in  which  the   equitable

beneficiary  has a legal interest and unconscionable  conduct  by

the property's holder in connection with its acquisition.

           In  its  order  imposing  a  constructive  trust,  the

superior court did not expressly consider whether Riddell's claim

of  allowances and share would result in a transfer  of  property

belonging  to the estate, or in which the estate had  some  legal

interest.   But  the court's earlier order, which recognized  the

validity of Riddell's marriage to Lillie, weighs heavily  against

the presence of this necessary element.

           The  estate  has  not challenged the superior  court's

decision  upholding the validity of the marriage despite Lillie's

vulnerable  mental  condition and Riddell's  fraudulent  conduct.

Because  that decision turned on the trial court's evaluation  of

competing evidence and has not been disputed, we have no occasion

to  question  it  here.   A prospective  heir  generally  has  no

recognized  right to a living relative's property: we  have  held

that  a  decedent's  property  interests  devolve  to  heirs  and

devisees  only upon death;10 and even then the heirs and devisees

receive  their interests only "subject to" the surviving spouse's

statutory allowances and share,11 which similarly vest upon death

and depend solely on the surviving spouse's marital status - that

is, on the existence of a valid marriage.12

           By  ruling that Riddell's marriage was valid and could

not  be  set  aside by the estate, the superior court effectively

determined  that Riddell's statutory entitlements  to  allowances

and share had vested upon Lillie's death - before Lillie's estate

ever received any cognizable interest or right to the portion  of

Lillie's  estate  that vested in Riddell.  As a  matter  of  law,

then,  the  court's order validating the marriage ruled  out  the

existence  of  an  element  necessary  to  support  the   court's

subsequent  decision to impose a constructive  trust:  a  finding

that  the  portion of Lillie's estate passing to Riddell  "justly

belong[ed]" to the estate.13

           Moreover,  even  if we assume that the  estate  had  a

cognizable   interest  in  these  funds,  the  superior   court's

declaration of a valid marriage would still rule out  the  second

prerequisite  for  a constructive trust: a finding  that  Riddell

obtained   his   statutory   rights   "by   reason   of   unjust,

unconscionable,  or  unlawful means."14   As  already  explained,

Riddell  acquired  his  statutory right to allotments  and  share

solely  because  he married Lillie and survived  her  with  their

marriage intact.  For reasons we address below in Part III.C.  of

this  opinion,  we  conclude  that  the  superior  court's  order

declaring   the   marriage   to  be   valid   despite   Riddell's

unconscionable  premarital conduct precludes a  finding  that  he

acquired his statutory rights because of that conduct.

           To  be sure, as the superior court noted in its  order

validating  the marriage, Riddell's fraudulent conduct  persisted

after  he  married  Lillie;  and as  this  court  made  clear  in

Riddell  I,  Riddell's  continuing misconduct  ultimately  caused

Lillie  to  execute a new will shortly before her  death,  naming

Riddell  as  her  sole beneficiary.15  But the  superior  court's

earlier  decision invalidating that will for lack of testamentary

capacity  -  the decision we affirmed in Riddell I16  -  directly

addressed  the  harm  caused  by that  ongoing  misconduct.   And

neither  the new will nor the unconscionable postmarital  conduct

that  led  to its execution had any effect on Riddell's right  to

the  statutory  benefits,  since  his  right  to  those  benefits

depended  solely on the validity of the marriage at its inception

and  on his survival of Lillie while still her spouse.  Moreover,

the  estate did not assert, nor did the superior court find, that

Riddell's  misconduct  during  the  marriage  brought  about   or

hastened  Lillie's death, thereby causing his statutory  benefits

to vest sooner, or that it had any other causal connection to the

timing or ultimate vesting of his right to the benefits.

            The  absence  of  a  causal  link  between  Riddell's

unconscionable postmarital conduct and his right to  receive  the

statutory  benefits  of marriage thus readily  distinguishes  his

case  from  cases  involving constructive trusts imposed  against

murderers  - a category that the dissent mistakenly describes  as

being  similar to the one before us.17  For as the dissent itself

acknowledges, the constructive trust principle applies  in  those

cases because "the title to property is acquired by murder as  it

is  where  the  title  is  acquired by fraud,  duress,  or  undue

influence."18   Thus, in the present case, the causal  link  that

justifies  imposing  a constructive trust  in  cases  of  spousal

murder19 - and that certainly would have justified a constructive

trust had it been found to exist here - is missing.

                     C.    General Principles Governing Equitable

               Relief

           A  consideration  of  generally recognized  principles

governing  equitable  relief  confirms  the  conclusion  that   a

constructive  trust was improper under these circumstances.   Two

equitable principles are relevant here.

           First,  a court acting in equity ordinarily "  `cannot

[intrude]  in  matters that are plain and fully  covered  by  [a]

statute.' "20  Here, the Alaska Legislature has explicitly set out

the  property  interests  that vest upon  death  in  a  surviving

spouse:  homestead  allowance,  family  allowance,  and  elective

share; the legislature has specified the circumstance that  makes

them  vest:  the existence of a "surviving spouse" - that  is,  a

spouse who remained legally married at the time of death; and the

legislature  has attached no other prerequisite to the  surviving

spouse's   statutory  right.21   Similarly,  by  specifying   the

requirements for a valid marriage and limiting the ways in  which

a  marriage may be invalidated, the legislature has fully covered

the  manner  in  which  courts  may determine  whether  a  person

qualifies  as  a "surviving spouse" for purposes of  acquiring  a

vested statutory right to allowances and share.22 As the superior

court recognized in upholding the validity of Riddell's marriage,

the  legislature deliberately limited the right to challenge  the

validity of a marriage that is voidable on grounds of disability,

force,  or fraud, extending that right exclusively to "the  party

under the disability or upon whom the force or fraud is imposed."23

Given  the superior court's findings that Riddell's marriage  was

neither  void  ab  initio  because  of  Lillie's  incapacity  nor

voidable  after  her  death  for  gross  fraud  arising  from  "a

combination of [Lillie's] incompetence and [Riddell's]  egregious

behavior,"  it follows that the statutory provisions governing  a

surviving spouse's automatic entitlements to allotments and share

"fully covered" Riddell's situation.24

           A  second,  closely related equitable  principle  that

controls  these  circumstances is that a  court  must  not  apply

equity  to  do indirectly " `what the law or its clearly  defined

policy forbids to be done directly.' "25  Here, the superior court

recognized  that Lillie, despite her incapacity,  understood  the

consequences  of   her  actions  when  she  accepted  Riddell  in

marriage;  the  court further held that, even when combined  with

Lillie's  incapacity,  Riddell's  fraudulent  actions  were   not

sufficiently gross to allow a post-mortem claim that the marriage

was  voidable.  In consequence, as we have seen, the law required

the  court  to declare Riddell eligible to receive the  statutory

benefits  of a surviving spouse; indeed, the court's first  order

recognized  that requirement.  Yet by subsequently  invoking  the

same  factual findings of fraud and incompetence to  trigger  the

equitable  mechanism  of  a constructive  trust,  the  court  did

indirectly  what the law specifically forbade it to do  directly:

in  nullifying  Riddell's already vested right to allotments  and

share and awarding the money to the estate, the court effectively

allowed the estate to avoid on equitable grounds the direct legal

consequences of the court's earlier legal conclusion that  Lillie

had  made  "a  competent  decision about her  marriage"  and  had

"understood the nature of her decision to marry Mr. Riddell."

     D.   Other Considerations

           We  recognize  that  the  superior  court  rested  its

decision in part on the New Hampshire Supreme Court's decision in

Patey v. Peaslee and that Patey approved pursuit of an action for

a  constructive trust under closely similar circumstances.26  Yet

the  majority's decision in Patey cites no useful  authority  for

its  unconventional application of the constructive trust remedy;

as  far as we can determine, the decision has never been followed

under similar circumstances since it was issued in 1957.  And  in

our  view,  the dissent in Patey persuasively argues  essentially

the  same  point  we make here: that the status and  benefits  of

marriage  are within the province of the legislature and  that  a

court  must avoid using its equitable powers to invalidate rights

that  flow  from  surviving a legally  valid  marriage  when  the

legislature so clearly directs those rights.27  We thus decline to

follow Patey.

          We further recognize that Alaska's Uniform Probate Code

generally   gives  trial  courts  broad  latitude  to  supplement

statutory  provisions  with equitable principles:   AS  13.06.015

specifies  that "[u]nless displaced by the particular  provisions

of  [the code], the principles of law and equity supplement those

provisions."28  Yet nothing in this opinion discourages the use of

these  broad supplemental powers; we merely hold that the factual

circumstances the trial court found here did not leave  room  for

equitable   supplementation:  the  "particular   provisions"   of

statutory  law governing void and voidable marriages and  accrual

of   allowances  and  share  fully  covered  this  situation  and

affirmatively  "displaced" the equitable remedy  of  constructive

trust.   We  apply no broad limitations on the use  of  equitable

measures  in  probate  cases; instead, we merely  hold  that  the

selected measure of a constructive trust did not apply here.29

           The  facts in this case obviously make it tempting  to

deny  Riddell any benefit from his fraudulent conduct; this makes

the  recourse  of a constructive trust seem alluringly  sensible.

But  allowing  offensive  factual  circumstances  to  dictate  an

unauthorized  legal remedy can have a pernicious  effect  in  the

long-run  by upsetting the complex and delicate balance that  our

system   of   government   strives  to   maintain   between   the

legislature's  lawmaking  powers  and  the  courts'   traditional

equitable powers.  The superior court here carefully examined all

relevant evidence and declared Riddell to be the surviving spouse

of  a valid marriage.  The legislature has spelled out the rights

that  Riddell acquires by virtue of his status.  To dilute  these

plain   and  complete  legislative  directives  with  a   legally

inappropriate  equitable  remedy would impermissibly  expand  the

court's  equitable powers at the expense of established  positive

law.

            We  must  therefore  vacate  the  order  imposing   a

constructive  trust  and remand this case to allow  the  superior

court to determine the amount of Riddell's allowances and share.30

In  remanding  the  case, however, we note  that  the  applicable

statutes  specify the amount of both the homestead allowance  and

elective share31 but leave the amount of the family allowance  in

the court's discretion.32  To this extent, the statutes allow the

superior  court  to  factor  equitable  considerations  into  its

decision on remand.

IV.  CONCLUSION

           We REVERSE the order imposing a constructive trust and

REMAND  for  further proceedings to establish the amount  of  the

statutory allowances and share.

CARPENETI, Justice, dissenting.

           Because  the finding that a marriage is valid  is  not

inconsistent  with  the  imposition of a  constructive  trust,  I

dissent  from  today's  Opinion.   A  comparison  of  the   legal

requirements of a valid marriage with the legal requirements of a

constructive  trust  shows why there is no inconsistency  in  the

superior   court's  decision  and  why  it  should  be  affirmed.

Moreover, AS 13.06.015 authorizes the superior court's imposition

of  a constructive trust; the Opinion errs in concluding that the

equitable  remedy  was  "displaced"  by  the  statutes  governing

marriages  and  accrual of allowance and share.   Finally,  other

states have imposed constructive trusts in situations similar  to

the  one  before  the court, and a leading treatise  specifically

approves the procedure.

           Legal requirements for valid marriage and constructive

trust

           There  are  only  limited  circumstances  in  which  a

marriage may be declared void.  The legislature has provided that

a  marriage  may  be declared void only if, at the  time  of  the

marriage,  a party was under the age of consent, a party  was  of

unsound  mind, force or fraud was used in obtaining  consent,  or

there  was  failure to consummate the marriage.33   Moreover,  in

order for the marriage to be invalidated, the disability or undue

influence must exist at the moment that a person enters into  the

marriage.34  These requirements narrowly confine the situations in

which one's consent to marry is not considered valid.

           In contrast to the well-defined, limited circumstances

in  which  a marriage may be declared void, a constructive  trust

may be imposed in a broad range of circumstances.  In imposing  a

constructive  trust, there is no requirement that the  unjust  or

unconscionable  conduct occur at the moment that title  transfers

or that a statutory right attaches, only that the defendant holds

the  property in circumstances that are unjust.  As  we  said  in

McKnight  v.  Rice,  Hoppner, Brown &  Brunner,  quoting  from  a

leading  treatise, a constructive trust is "a  [device]  used  by

chancery to compel one who unfairly holds a property interest  to

convey that interest to another to whom it justly belongs."35

           The  Opinion quotes McKnight to this effect,36 but  it

mistakenly  assigns  dispositive  significance  to  the  superior

court's  finding of a valid marriage, holding that  this  finding

"ruled  out  the existence of an element necessary to  .  .  .  a

constructive trust: a finding that the portion of Lillie's estate

passing  to  Riddell `justly belong[ed]' to the  estate."37   The

finding  of  a  valid marriage, and the subsequent passing  of  a

portion  of  Lillie's  estate to Riddell through  allowances  and

shares,  merely sets the stage for the determination  of  whether

there  are  grounds  for  application of the  constructive  trust

doctrine:  "It is then [after the property passes under the  will

or  by  intestacy]  that  the equitable principle  as  to  unjust

enrichment becomes applicable."38

           The  Opinion's discussion of "the second prerequisite"

for  a constructive trust is even farther off the mark.  Although

it quotes McKnight to the effect that a finding that one obtained

property "by reason of unjust, unconscionable, or unlawful means"39

will  justify  imposition  of  a  constructive  trust,  it  reads

"unjust" and "unconscionable" completely out of the quotation and

focuses  only on "unlawful."  That is error; our use of  "or"  in

McKnight makes clear that Riddell's use of either "unjust"  means

or  "unconscionable" means to acquire an interest gives the court

a  sufficient basis to impose a constructive trust.  The superior

court  in the present case did exactly that, using a constructive

trust  as an equitable remedy to take Riddell's unjustly acquired

interest in the estate and vest it in the rightful40 beneficiaries

of the estate.

           Because Riddell's marriage was not unlawful -  in  the

Opinion's   phrase,  because  it  was  "valid  despite  Riddell's

unconscionable premarital conduct"41 - the Opinion  ignores  that

his  conduct  in procuring the marriage was undoubtedly  "unjust"

and, indeed, "unconscionable."

           Thus  it  is clear that, despite the Opinion's  claim,

there   is  no  "absence  of  a  causal  link  between  Riddell's

unconscionable  .  .  .  conduct and his  right  to  receive  the

statutory  benefits of marriage."42  Quite to the  contrary,  the

conduct that the Opinion twice describes as "unconscionable"43  -

what the superior court described, with the apparent agreement of

the Opinion,44 as "fraudulent conduct toward Lillie, "bullying . .

. and physical[] intimidat[ion of] friends [and] family," finding

that  Riddell  "abused [Lillie] physically" - while  it  did  not

invalidate  the marriage, is precisely the type of  conduct  that

supports the superior court's finding that Riddell's "legal title

to  property has been obtained through actual fraud, concealment,

by   taking  advantage,  or,  under  circumstances  rendering  it

unconsci[onable]  for" him to retain the interest.   Indeed,  the

Opinion  notes  that the superior court found  that  Riddell  had

induced Lillie to marry him " `for the purpose[] of obtaining her

assets'  and  that  his wife had suffered from dementia  for  the

majority  of  their  relationship."45   As  the  superior   court

carefully  explained,  it  upheld the validity  of  the  marriage

despite  those findings and although "even immediately afterward,

[Lillie]  didn't  remember  that she had  married  Mr.  Riddell,"

because  the  superior court "cannot say that  at  the  time  she

applied   for   the  marriage  license  or  when   she   actually

participated in the ceremony she did not understand that she  was

getting  married."  In other words, the superior  court  made  no

finding that Riddell's unconscionable conduct did not lead to the

marriage.  To the contrary, it effectively found that Riddell had

fraudulently induced the marriage.  The superior court found only

that, at the moment she applied for the license and at the moment

she  was  married, it could not say that she was unaware of  what

she was doing.

          Alaska Statute 13.06.015

           The  legislature has made it clear that,  in  deciding

claims  arising under the probate code, a court may exercise  its

equitable  powers unless explicitly forbidden to do  so:   Alaska

Statute  13.06.015  provides  that  "[u]nless  displaced  by  the

particular provisions of AS 13.06_AS 13.36, the principles of law

and  equity supplement those provisions."  No part of any of  the

"particular   provisions"  of  the  probate  code  dealing   with

allowances  and  share  displace the principle  of  equity;  they

merely  establish  Alaska's  positive  statutory  law  on   those

subjects.   Without citation to authority, the Opinion mistakenly

looks  outside of the probate code, to provisions of the statutes

dealing  with divorce and dissolution,46 to reach its  conclusion

that  AS  13.06.015 does not apply:  "the `particular provisions'

of  statutory  law  governing  void and  voidable  marriages  and

accrual of allowances and share fully covered this situation  and

affirmatively  `displaced' the equitable remedy  of  constructive

trust."47  But the test under AS 13.06.015 is not whether  Alaska

law  "fully covered" the situation.  It is whether any particular

provisions  of the probate code should be read as displacing  the

superior  court's authority to invoke the equitable  doctrine  of

constructive  trust.   Given that AS 13.06.015  so  unambiguously

states  that  principles of equity apply "[u]nless  displaced  by

particular provisions of AS 13.06-AS 13.36," today's holding that

a  finding of a valid marriage is inconsistent with the equitable

doctrine of constructive trust adopts an unduly restrictive  view

of our law.

          In support of its conclusion, the Opinion cites Pacific

Scene,  Inc.  v. Penasquitos, Inc.48 for the proposition  that  a

court  acting  in equity generally "cannot [intrude]  in  matters

that  are  plain and fully covered by [a] statute."49  While  the

proposition is unexceptionable,50 Pacific Scene lends no  support

to the Opinion's conclusion, for that case dealt with a statutory

scheme  that  is  far  different from  the  Alaska  probate  code

sections that are before us in this case.  In Pacific Scene,  the

California  legislature  had enacted a  "comprehensive  statutory

revision"   that   "comprise[d]  a  broad  and  detailed   scheme

regulating  virtually  every aspect of corporate  dissolution."51

The  court  described such legislation as covering the  situation

where  "course of conduct, parties, things affected,  limitations

and exceptions are minutely described, indicat[ing] a legislative

intent that the statute should totally supersede and replace  the

common  law  dealing  with  the subject  matter."52   That  is  a

completely different situation than the one before us now.

           The  statutes before us now are garden-variety probate

laws  that establish allowances and shares, and in no way suggest

that  they  are intended to preclude the court's use  of  general

principles  of  equity.  They do not specifically "displace"  the

equitable  power  of  the superior court  to  give  an  unjustly-

inherited share back to the estate through constructive trust.

           Nor  does the superior court's decision "do indirectly

what  the  law or its clearly defined policy forbids to  be  done

directly,"  as  the  Opinion claims.53  The legislature  did  not

forbid  the  superior  court from imposing a  constructive  trust

after   allowing  Riddell  to  inherit  from  the  estate.    The

legislature  did  require that the superior court  recognize  the

validity  of  the marriage, and the court did so.   The  superior

court  did  not  invalidate the marriage or ignore the  statutory

mandate  to  give Riddell his share of the estate.   Riddell  was

allowed  to  inherit  his  statutorily-prescribed  share.   After

fulfilling the statutory directive, the superior court  used  the

equitable powers specifically envisioned by AS 13.06.015 to carry

out  the  legislature's statutory scheme, creating a constructive

trust to take back Riddell's unjustly-acquired gains.

            The  superior  court  complied  with  all  applicable

statutes, and did not do indirectly what the law forbade it to do

directly.  The Opinion's argument - that once the law of voidable

and void marriages is applied, Riddell's allowances and share are

established  and  a constructive trust may not be  imposed  -  is

wrong, as is shown by this discussion from Scott on Trusts:

                Where  the  Statute of  Wills  and  the
          statute of distributions make no provision as
          to  the  effect of murder of the decedent  by
          the  legatee  or  heir, the  property  passes
          under the will or by intestacy to him.  It is
          then  that  the  equitable  principle  as  to
          unjust  enrichment becomes applicable.   That
          principle is as applicable where the title to
          property is acquired by murder as it is where
          the  title  is acquired by fraud, duress,  or
          undue  influence.  By imposing a constructive
          trust  upon  the murderer, the court  is  not
          making an exception to the provisions of  the
          statutes   but   is  merely  compelling   the
          murderer  to  surrender the  profits  of  his
          crime     and    thus    preventing    unjust
          enrichment.[54]
          
Thus,  "where  the title is acquired by fraud, duress,  or  undue
influence," a constructive trust is imposed on the property after
it  has already devolved to the spouse. The trust is then imposed
on  the  property for the benefit of the estate.  Scott on Trusts
makes clear that this is proper.
           The  Opinion's  approach would allow one  spouse,  who

murders  the other, to retain his or her share of the  estate  in

the  absence  of positive legislation to the contrary.55   Alaska

lacked  such  legislation  until 1996, when  AS  13.12.80356  was

enacted.57   Under  the  majority's rigid interpretation  of  the

inheritance and marriage statutes, Alaska courts before that time

would  have been forced to uphold the murderer's elective  share,

as  the " `particular provisions' of statutory law governing void

and  voidable  marriages and accrual of allowances  and  share"58

cover that situation to the same extent they cover this case. Yet

courts  in several states have found that equity demands imposing

a constructive trust on the murderer's share, even in the absence

of   a   statute  like  AS  13.12.803.59   Likewise,  the  Alaska

legislature meant for the inheritance and marriage statutes to be

read  in  conjunction with AS 13.06.015, allowing the possibility

for courts to impose a constructive trust to prevent injustice in

limited  circumstances.  As Scott on Trusts definitively  states,

the  equitable principle of unjust enrichment, which  allows  the

imposition of a constructive trust, "is as applicable  where  the

title  to property is acquired by murder as it is where the title

is acquired by fraud, duress, or undue influence."60

           Judge  Weeks  was well within the law  in  imposing  a

constructive trust to reclaim the property that he  found  -  and

that  this court today affirms on "compelling evidence"61  -  was

gained   by   Riddell's  "fraudulent  conduct  toward  Lillie,"62

"bullying  family  and friends,"63 "physical[] intimidat[ion  of]

friends, family, lawyers and caregivers,"64 and because he "abused

[Lillie]  physically."65  This is a case in which  equity  fairly

demands that a constructive trust be imposed, and Judge Weeks was

correct in imposing one.

           For  all  of  the  above reasons, I would  affirm  the

decision  of the superior court imposing a constructive trust  on

Riddell's  statutory homestead allowance, family  allowance,  and

elective share.  I therefore respectfully dissent.

_______________________________
1For additional background concerning Riddell and Lillie and  the
administration  of this estate, refer to Riddell v.  Edwards,  32
P.3d  4 (Alaska 2001) ("Riddell I") and Riddell v. Edwards,  Mem.
Op. & J. No. 1050 (Alaska, October 10, 2001) ("Riddell II").
2Riddell I, 32 P.3d at 5, 10.
3Riddell II, Mem. Op. & J. No. 1050 at 1.
4The  superior  court cited Coleman v. Coleman, 166  P.  47  (Or.
1917).
5Patey  v. Peaslee, 111 A.2d 194, 198 (N.H. 1955) (barring  heirs
from  annulling marriage); Patey v. Peaslee, 131  A.2d  433,  435
(N.H.   1957)  (recognizing  constructive  trust  as  appropriate
equitable remedy).
6Internal footnote omitted citing Patey, 111 A.2d at 198.
7See,  e.g.,  Leis  v. Hustad, 22 P.3d 885,  887  (Alaska  2001);
Hamilton v. Blackman, 915 P.2d 1210, 1213 (Alaska 1996); Leisnoi,
Inc.  v.  Stratman, 835 P.2d 1202, 1207 (Alaska  1992);  Wood  v.
Collins, 812 P.2d 951, 955 n.4 (Alaska 1991).
8See, e.g., McKnight v. Rice, Hoppner, Brown & Brunner, 678  P.2d
1330,  1334-35  (Alaska 1984) (elements);  City  of  Lakewood  v.
Pierce  County,  30  P.3d  446, 450 (Wash.  2001)  (elements  and
standard of proof).
9McKnight,  678  P.2d at 1335 (quoting George  Gleason  Bogert  &
George Taylor Bogert, The Law of Trusts and Trustees  471,  at  3
(rev. 2d ed. 1978)).
10See  Sheehan v. Estate of Gamberg, 677 P.2d 254, 256-57 (Alaska
1984).
11In this regard, AS 13.16.005 expressly provides:

          The  power  of a person to leave property  by
          will,  and the rights of creditors, devisees,
          and  heirs to the property are subject to the
          restrictions and limitations contained in  AS
          13.06  -  AS  13.36 to facilitate the  prompt
          settlement  of estates. Upon the death  of  a
          person,   that  person's  real  and  personal
          property devolves to the persons to  whom  it
          is  devised  by  the last will  or  to  those
          indicated  as substitutes for them  in  cases
          involving  lapse,  renunciation,   or   other
          circumstances  affecting  the  devolution  of
          testate   estates,  or  in  the  absence   of
          testamentary disposition, to the heirs, or to
          those  indicated as substitutes for  them  in
          cases   involving   renunciation   or   other
          circumstances    affecting   devolution    of
          intestate   estates,  subject  to   homestead
          allowance,   exempt   property   and   family
          allowance,  to rights of creditors,  elective
          share   of  the  surviving  spouse,  and   to
          administration.
          
(Emphasis added.)

12Alaska's statutory rights to allowances and share are set forth
in  AS  13.12.402, AS 13.12.404, and AS 13.12.202.  AS  13.12.402
states: "A decedent's surviving spouse is entitled to a homestead
allowance  of $27,000. . . .  The homestead allowance  is  exempt
from  and  has  priority  over  all claims  against  the  estate.
Homestead  allowance  is in addition to a share  passing  to  the
surviving spouse . . . by way of elective share."

          AS 13.12.404(a) provides:

          In   addition  to  the  right  to   homestead
          allowance  .  . . , the decedent's  surviving
          spouse  and minor children . . . are entitled
          to a reasonable allowance in money out of the
          estate  for  their  maintenance  during   the
          period  of  administration. . . . The  family
          allowance  is  exempt from and  has  priority
          over   all   claims  except   the   homestead
          allowance.
          
           AS 13.12.202(a) provides:  "The surviving spouse of  a
decedent who dies domiciled in this state has a right of election
.  . . to take an elective share amount equal to one-third of the
augmented estate."

13McKnight, 678 P.2d at 1335 (quoting Bogert, supra note 9,  471,
at 3).
14Id. (quoting Bogert, supra note 9,  471, at 3).
15Riddell I, 32 P.3d 4, 6 (Alaska 2001).
16Id. at 9-10.
17Dissent at 19, 26-28.
18Dissent at 26 (quoting 5 Austin Wakeman Scott & William Franklin
Fratcher,  The  Law  of  Trusts  492,  at  440  (4th  ed.  1989))
(emphasis in dissent altered).
19See  5  Scott  & Fratcher, supra note 18,  492,  at  440  ("[A]
constructive  trust  is  imposed upon one who  acquires  property
through his own wrong.") (emphasis added).
20Pacific  Scene, Inc. v. Penasquitos, Inc., 758 P.2d 1182,  1186
(Cal.  1988)  (quoting Marsh v. Edelstein, 88 Cal. Rptr.  26,  31
(Cal. App. 1970)); accord I.N.S. v. Pangilinan, 486 U.S. 875, 883
(1988) ("[I]t is well established that `[c]ourts of equity can no
more  disregard  statutory  and constitutional  requirements  and
provisions than can courts of law.' ") (quoting Hedges  v.  Dixon
County, 150 U.S. 182, 192 (1893)).
21See  supra  note  12.   As  already indicated,  these  property
interests vest upon death; the property interests of other  heirs
and  devisees  are necessarily subordinate because  they  devolve
"subject to" the surviving spouse's statutory interest.
22See  AS  25.24.010  (only spouse may maintain  action  to  have
marriage  declared  void);  AS  25.24.020  (definition  of   void
marriages);  AS 25.24.030 (definition of voidable marriages);  AS
25.05.031 (marriage is voidable only by spouse).
23AS 25.05.031.
24Pacific Scene, Inc., 758 P.2d at 1186.
25Id. (quoting Marsh, 88 Cal. Rptr. at 31).
26131 A.2d 433, 435 (N.H. 1957).
27See  id. at 437-38 (Blandin, J., dissenting); see also Ch.  58,
pmbl., SLA 1963 (stating that the legislature's purpose was "[t]o
provide a comprehensive marriage code"); Batey v. Batey, 933 P.2d
551,  554  (Alaska 1997) (declining to use common law  definition
that countered express legislative intent).
28Citing AS 13.06.015, the dissent questions whether the statutory
provisions governing void and voidable marriages can displace the
court's  equitable  power  in  a  probate  case:  because   those
definitions are located outside the probate code and therefore do
not  qualify as "particular provisions" of the probate code,  the
dissent reasons, AS 13.06.015 does not allow them to displace the
supplemental powers granted in that provision.  Dissent at 23-25.
But  by providing that the right to marital allowances and  share
turn on the existence of a "surviving spouse," see supra note 12,
the  probate  code necessarily incorporates the  marriage  code's
definitional provisions that give the term meaning -  if  not  as
"particular provisions" of the probate code that can displace the
court's  supplemental equity powers, then at least as "principles
of law" directly applicable under AS 13.06.015's express terms.
29The dissent attempts to portray this conclusion as "holding that
a  finding of a valid marriage is inconsistent with the equitable
doctrine  of  constructive  trust."   Dissent  at  24.   But  our
decision is considerably narrower, holding that the imposition of
a  constructive trust on a surviving spouse's statutory  benefits
is  impermissible  only  when, as here,  the  surviving  spouse's
unconscionable  conduct neither caused an  invalid  marriage  nor
otherwise  caused  or  helped  to cause  the  statutory  benefits
arising from that marriage to vest.
30Our decision renders Riddell's remaining arguments moot, making
it unnecessary to consider them.
31AS 13.12.402 ($27,000); AS 13.12.202(a)- (b) (one-third of  the
augmented    estate;    supplemental    share    under    certain
circumstances).
32AS 13.12.404(a) ("a reasonable allowance").
33AS 25.24.030.
34Id.   After  quoting  the superior court  to  the  effect  that
"[p]ersons  suffering from dementia have fluctuating  periods  of
more  contact with reality," the Opinion notes that  "Lillie  was
competent and understood the consequences of her actions  at  the
time  that  she  married Riddell. . . . [T]he  evidence  did  not
convincingly  prove Lillie's incompetence when she  entered  into
the marriage."  Opinion at 5 (emphasis added).
35McKnight v. Rice, Hoppner, Brown & Brunner, 678 P.2d 1330, 1335
(Alaska 1984) (quoting G. Bogert, Trusts and Trustees  471, at  3
(rev. 2d ed. 1978)).
36Opinion at 11-12.
37Id.
38Austin  Wakeman Scott & William Franklin Fratcher, The  Law  of
Trusts  492, at 440 (4th ed. 1989).
39Id. (emphasis added) (quoting Bogert, supra note 3,  471 at 3).
40The  Opinion  strains to find a requirement that the  equitable
beneficiary have a "legal interest" in the property,  Opinion  at
10,  and then concludes that because title vested in Riddell upon
Lillie's  death,  the  superior  court's  "order  validating  the
marriage  ruled  out  the existence of an  element  necessary  to
support  the court's subsequent decision to impose a constructive
trust:  a finding that the portion of Lillie's estate passing  to
Riddell  `justly belong[ed]' to the estate."  Opinion  at  11-12.
But  the  constructive  trust doctrine,  a  creature  of  equity,
contains  no  requirement of a "legal interest"  as  the  Opinion
narrowly  defines  it.  Rather, the constructive  trust  doctrine
looks  to whether there is an equitable interest in the property:
"A  constructive  trust is imposed upon  a  person  in  order  to
prevent his unjust enrichment.  To prevent such unjust enrichment
an  equitable duty to convey the property to another  is  imposed
upon him." Restatement of Restitution  160 cmt. c (1937).
41Opinion at 12 (emphasis on "unconscionable" added; emphasis  on
"despite" deleted).
42Id. at 13.
43Id.  at  12,  13.  While conceding that Riddell's  conduct  was
unconscionable    both    before   the    marriage    ("Riddell's
unconscionable premarital conduct," Opinion at 12) and after  the
marriage ("Riddell's unconscionable postmarital conduct," Opinion
at  13),  the  Opinion seeks to avoid the unescapable  conclusion
that  there  is  therefore a clear causal link between  Riddell's
unconscionable conduct and his receipt of the statutory  benefits
of  marriage.   The Opinion seeks to distinguish this  case  from
cases  imposing constructive trusts against murderers by pointing
to the "absence of a causal link between Riddell's unconscionable
postmarital  conduct  and  his right  to  receive  the  statutory
benefits of marriage." (Opinion at 13, emphasis added.)   But  in
conceding  that Riddell's conduct was unconscionable both  before
and after the marriage, the Opinion concedes that the causal link
it denies actually does exist.
44The  Opinion refers to the "compelling evidence"  of  Riddell's
misconduct.  Opinion at 4.
45Opinion at 1-2.
46The Opinion refers to the provisions of law governing void  and
voidable marriages, which are found in the statutes dealing  with
divorce  and  dissolution,  AS 25.24.020-.030.   Opinion  at  14.
Besides   being  inapplicable  to  AS  13.06.015,  which   refers
specifically  to  AS  13.06-AS 13.36, the statutes  dealing  with
divorce   and   dissolution  make  no  mention  of   specifically
displacing  any principles of equity, much less the  doctrine  of
constructive trust.
47Opinion at 17.
48758 P.2d 1182 (Cal. 1988).
49Opinion  at  14  [bracketed material  is  as  inserted  in  the
Opinion].
50With  the  possible  exception that the California  court  said
"positive" statute, 758 P.2d at 1186, not "[a]" statute,  Opinion
at 14, suggesting that a positive - that is, a clear and strong -
declaration  of  law  limiting the court's  equitable  powers  is
required before such powers may be limited.
51758 P.2d at 1184.
52Id. at 1183 (citation and internal quotations omitted) (emphasis
added).
53Opinion at 15 (citations and internal quotations omitted).
54Austin  Wakeman Scott & William Franklin Fratcher, The  Law  of
Trusts  492, at  440 (4th ed. 1989) (emphasis added).
55The  Opinion attempts to distinguish the present case from  the
case  of  a  murdering spouse by pointing to the  "absence  of  a
causal  link between Riddell's unconscionable postmarital conduct
and  his  right  to receive the statutory benefits of  marriage."
Opinion  at 13.  As shown above, there is a causal link  in  this
case  between  Riddell's unconscionable conduct - which  occurred
both before and after the marriage - and his receipt of benefits:
Riddell  fraudulently induced Lillie to marry  him  in  order  to
obtain her assets.
56AS 13.12.803(a) provides, in relevant part:

          An   individual  who  feloniously  kills  the
          decedent  forfeits all benefits .  .  .  with
          respect  to the decedent's estate,  including
          an  intestate  share, an elective  share,  an
          omitted   spouse's   or  child's   share,   a
          homestead allowance, exempt property,  and  a
          family allowance.
57Ch. 75,  3, SLA 1996.
58Opinion at 17.
59See, e.g., In re Estate of Danforth, 705 S.W.2d 609, 611-12 (Mo.
App. 1986) (holding that wife not allowed to profit by inheriting
from  husband's  estate  when she committed  fraud  in  procuring
marriage  and  conspiracy  in  murdering  husband);  Garwols   v.
Bankers' Trust Co., 232 N.W. 239, 242 (Mich. 1930) (using  common
law to supplement statutory scheme to prevent son from inheriting
from estate of his mother whom he murdered).
60Scott & Fratcher, supra note 6,  492, at 440.
61Opinion at 4.
62Id.
63Id.
64Id.
65Id.