McGowan v. McGowan

Rosie L. Herman, the sister and only heir of the deceased, Oscar McGowan, who was shot and killed by his wife, respondent, Jean Pearl McGowan, appeals from a judgment in consolidated heirship and preliminary distribution proceedings decreeing that pursuant to the conclusive presumption of Probate Code section 258, respondent was entitled to succeed to one-half the proceeds of Oscar’s insurance and retirement benefits as a federal employee. The question of statutory interpretation is one of first impression. We have concluded that the statutory presumption in section 258 is not conclusive where the acquittal of murder is the result of a negotiated plea and that the judgment must be reversed.

The pertinent facts were found as follows by the probate court: Oscar and respondent were married on December 13, 1969. On July 12, 1970, she shot and killed him and was charged with murder, being armed with a deadly weapon, use of a firearm in the commission of an offense, and a prior felony of grand theft. Thereafter, her attorney negotiated a plea of nolo contendere (Pen. Code, § 1016, subd. 3) to involuntary manslaughter (Pen. Code, § 192, subd. 2). The superior court subsequently…