The Lawyer of Lost Causes and Bizarre Cases

Mark DeBofsky contends with Illinois’ slayer statute

Published in 2020 Illinois Super Lawyers magazine

By Trevor Kupfer on January 30, 2020


On Jan. 9, 2014, Anka Miscevic killed her husband, Zeljko. She stabbed him with a kitchen knife while he was asleep; struck him with a baseball bat to prevent him from calling 911; and told police she loved him but feared that he intended to kill her and her family. She was later acquitted of first-degree murder by reason of insanity. 

After all that, the question became: What to do with Zeljko Miscevic’s pension?

That’s pretty unusual for an ERISA case—and it’s precisely why it found its way to Mark DeBofsky.

“I tend to get referrals for cases like this,” says the partner at DeBofsky Sherman Casciari Reynolds. “I’m sort of the lawyer of lost causes or bizarre cases.”

Novel insurance cases come up more often than you’d think, DeBofsky says, but ones like Laborers’ Pension Fund v. Miscevic are rare. DeBofsky litigated the case on Anka’s behalf, arguing that ERISA would preempt the slayer statute—the state law that prevents a murderer from being the beneficiary of their victim’s estate.

Beyond that, he says, “Under the common law of Illinois, going back to an 1895 Supreme Court case, the courts have recognized that, if you’re insane, you never formed the intent to commit murder. Therefore, you should be able to avoid the slayer bar.”

He adds: “There is very little doubt that, if you commit murder and you’re convicted, you will not be able to inherit. That’s kind of a given. But slayer statutes vary wildly from state to state. For instance, in the District of Columbia, you have to be convicted [to be denied benefits]. In the state of Illinois, the conviction requirement was removed, so in order to deny the inheritance, it has to be shown that you intentionally took the life of another person—either murder or manslaughter.”

When Illinois amended its slayer statute in 1983, it did not explicitly address whether a person who is found insane is barred from benefits. To DeBofsky’s knowledge, only one state’s slayer law addresses it: Ohio’s. 

After the case was lost in a downstate appellate court, DeBofsky handled the appeal to the 7th Circuit in January 2018. 

Complicating his argument was a 2001 ruling by the U.S. Supreme Court in Egelhoff v. Egelhoff, which explored whether ERISA should preempt a Washington law that automatically invalidates a life insurance beneficiary designation to a spouse upon the entry of a judgment for dissolution of marriage. 

“The court felt the sensible thing to do would [be to] hold that the state laws would be preempted by ERISA,” DeBofsky says. Justice Breyer’s dissenting opinion pointed out that such a ruling would also preempt state slayer laws, while Justice Scalia’s concurring opinion stated that slayer statutes “are more or less uniform nationwide, [so] their interference with the aims of ERISA is at least debatable.” 

“That was not correct,” DeBofsky says. “These 49 statutes are all over the place.”

Breyer’s point was brought up by one of the panel judges in the 7th Circuit, but it was absent from the ultimate ruling. DeBofsky lost.

And even though SCOTUS won’t hear the case, DeBofsky filed a separate case because, “the late Mr. Miscevic had two pensions—one with Laborers’ Fund of Illinois, the other with Laborers’ International Union of North America, and that one is based in D.C., where the statute requires conviction.” 

Whether a D.C. court hears the case may come down to a decision on which jurisdiction matters most: where the insurance plan is administered (D.C.) or where the couple was married (Illinois). As DeBofsky waits—“We’ve since received an adverse determination from the Laborers’ International Union, but there is no lawsuit pending,” he says—he’s pondering how insurance companies and the courts will decide on issues such as assisted suicide, distracted driving and, in the case of LeTran Tran v. Minnesota Life Insurance Company, autoerotic asphyxiation. He needs to stay up on these things for when the next bizarre case lands on his desk.

The Slayer Statute

According to the Illinois Probate Act of 1975, “A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit or other interest by reason of the death. … The property, benefit or other interest shall pass as if the person causing the death died before the decedent.”

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