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8/08/2010

Can My Wife Steal from Dead People?

Mark has a unique problem. To judge from TV shows, you'd think that most husbands have to worry their wives seeing dead people. However, Mark's wife is different. Apparently the only thing she sees about dead people is the opportunity to steal their stuff.

My wife and I were watching Rizzoli & Isles and there was a scene where it was revealed that someone had stumbled across a recently-murdered body and swiped the deceased's laptop. So my wife, who is otherwise a nice and law-abiding person, said she didn't understand why it would be illegal to take stuff that used to belong to a corpse is is now just lying there in the street.

Okay, so in order to save Mark's wife from a life of crime I thought I'd explain why it's not legal to take that laptop (at least in Virginia).

First of all let's define larceny (what we call stealing in Virginia). Larceny is the taking of personal property from a possessor, without the possessor's assent and with the intent to permanently deprive the possessor of the item. If you look in the older cases they will characterize larceny as "trespass upon chattels." Basically, in plain language that means that the core of a larceny charge is interfering with the possessor's right to possess an item. Possession does not have to be actual; it can be constructive (you are in possession of your car even when you have it parked in your driveway).

So, how does that apply to the deceased's laptop? After all, he's dead and therefore can't possess it anymore.

What you have to realize is that the fact that the owner died does not mean the property is lost or abandoned. All that death does is pass the possessory interest to another. It either passes via the legal scheme which a particular State has set up or by a will to the dead man's heirs and assigns. In plain language - when a man dies his property instantly becomes the property of his wife or kids or parents or whoever the law or will says it goes to.

In other words, when the person took the laptop she didn't steal from the dead man, she stole from his heirs.

Of course, as a practical matter the actual person to whom a particular item belongs to isn't settled immediately upon the death of its owner. For instance, consider a man who dies without a will in a State where the law gives 50% of his property to his wife and 50% to his 2 children. His wife has a 50% interest in the laptop, his daughter has a 25% interest, and his son has a 25% interest. Whom do I allege the laptop was stolen from?

In Virginia, the General Assembly has passed a statute resolving this question.

§ 19.2-284. Proof of ownership in offense relating to property.

In a prosecution . . . for stealing . . . any personal estate it shall be sufficient to prove that when the offense was committed the actual or constructive possession . . . in the whole or any part of such estate was in the person or entity alleged in the indictment or other accusation to be the owner thereof.

Because of this statute, I don't have to allege that the theft of the laptop was from all three persons who had an interest in it. All I have to do is allege the theft with one family member as the stated victim.

These kind of situations pop up more often than you'd think. People will hear that someone has died and drive right over to her house and start taking things, or grab things at the wake, or get money out of the account of the lady for whom they were the homecare nurse. In each case the person taking the item which he has not been given is guilty of larceny.

Ken Lammers . . . Permalink . . . 3 comments 3 Comments:

Love Ann said on August 08, 2010

Speaking as the wife in question, I very much appreciate your detailed, thorough answer. This makes complete sense to me. The "stuff" automatically passes to the heirs. Thank you for clearing this matter up! I will curtail my larcenous tendencies for the moment (certainly if we travel to Virginia).

Bill Poser said on August 12, 2010

I'm curious about the need to allege that the larceny was from any of the heirs. I would have thought that the larceny would be from the estate, which seems to function as a legal person for purposes such as taxation and civil suits.

Ken Lammers said on August 16, 2010

Hard to have the "estate" testify in court that it didn't give permission to take the item. I think the executor could testify, but I'd have to research it. In any event, the heirs would have a property interest in the estate and could still be called to testify under the statute.

The greatest difficulty I see is that there are a large number of cases where no estate is ever actually legally created. The family just gets together and decides who gets what. Therefore, there is no estate or executor to deal with.

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8/08/2010

Can My Wife Steal from Dead People?

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