When they left the island at about 7:00 p.m., the waters were rough, it was windy, and it was getting dark. His kayak's paddle was missing a locking clip and had no drain plug, as it had been removed by Graswald.

While crossing the Hudson, Mr. Viafore's kayak began to take on water and it began to sink. He exited his kayak and entered the river. Ultimately, he drowned in the river.

Graswald was arrested and charged with second degree murder and second degree manslaughter. On June 24, 2017, the case against Graswald was resolved by her plea to criminally negligent homicide, a class E felony under Penal Law §125.10.

As part of his employment with Parsons Brinckerhoff, Inc., Mr. Viafore had coverage for accidental death under three insurance policies, all issued by Zurich American Insurance Company.

Graswald was the beneficiary of 45 percent of the death benefit funds – a total of $491,531.04.

Zurich paid the funds into the Surrogate's Court in Dutchess County.

Laura E. Rice, Mr. Viafore's sister and the administrator of Mr. Viafore's estate, asked the Surrogate's Court to rule that Graswald had forfeited any interest in any asset in which Mr. Viafore had an interest or that might devolve to her as a result of his death.

New York Law

New York Penal Law §15.05(3) provides:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

The Surrogate's Court's Decision

In its decision, the Surrogate's Court observed that the principle that a wrongdoer may not profit from his or her wrongdoing was "deeply rooted" in New York State's common law. After citing to the "seminal case" of Riggs v. Palmer, 115 N.Y. 506 (1889), where a grandson who had intentionally killed his grandfather to secure his inheritance was prevented from inheriting under the grandfather's will, the Surrogate's Court pointed out that "[n]umerous cases" had reaffirmed the principle "that a forfeiture will apply to one implicated in an intentional felonious crime."

Moreover, the court continued, the forfeiture doctrine has expanded to apply to a party who sought to benefit from the decedent's death but recklessly caused the decedent's death, although forfeiture did not automatically arise if a party was convicted of or found to have committed involuntary manslaughter, such as criminally negligent homicide.

The court then decided that it had to conduct a hearing where Ms. Rice had the burden to establish that Graswald had "recklessly" caused Mr. Viafore death by a preponderance of the credible evidence.

It set the hearing for February 27, 2018. Stay tuned.

The case is Matter of Viafore, No. 2015-448 (N.Y. Surrogate's Ct. Dutchess Co. Jan. 22, 2018).