In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17‐2022 LABORERS’ PENSION FUND and JAMES S. JORGENSEN, Administrator of the Fund, Interpleader Plaintiffs, v. ANKA V. MISCEVIC, Interpleader Defendant‐Cross/Plaintiff‐Appellant, v. ESTATE OF M.M., and SNEZANA J. KAPLAREVIC, Guardian of the Estate, Cross/Defendants‐Appellees. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 1:16‐cv‐5865 — Charles P. Kocoras, Judge. ____________________ ARGUED JANUARY 9, 2018 — DECIDED JANUARY 29, 2018 ____________________ Before FLAUM, KANNE, and ROVNER, Circuit Judges.

Anka claimed she was entitled to a Surviving Spouse Pension.

The Estate of M.M. (Anka and Zeljko’s child) argued that Anka was barred from recovering from the Fund by the Illi‐ nois slayer statute. After both parties filed motions seeking a judgment on the pleadings, the district court ruled in favor of the Estate of M.M. It determined that the Employee Retire‐ ment Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, did not preempt the Illinois slayer statute, and that the statute barred even those found not guilty by reason of insanity from recovering from the deceased. We affirm.

I. Background The factual background is undisputed. On January 9, 2014, Anka killed her husband Zeljko at their home. The State of Illinois charged Anka with first degree murder. At the crimi‐ nal trial, the parties stipulated to the details: Anka stabbed Zeljko with a large kitchen knife while he was asleep; Anka struck Zeljko in the head with a baseball bat in order to pre‐ vent him from calling the police; and Anka told the police that she loved Zeljko but killed him because “she feared that he intended to kill her and her family.” Anka has a history of se‐ rious mental illness, including paranoid delusions, and has No. 17‐2022 3 received mental health treatment. Anka and Zeljko had one living child, thirteen‐year‐old M.M.

At trial, Judge Liam Brennan of the Circuit Court of Du‐ Page County determined that the state established each ele‐ ment of first degree murder beyond a reasonable doubt. Spe‐ cifically, he found that “Anka Miscevic intended to kill Zeljko Miscevic without legal justification.” Judge Brennan also de‐ termined, however, that Anka established by clear and con‐ vincing evidence that she was insane at the time of the offense.

Therefore, Judge Brennan found Anka not guilty by reason of insanity.

Prior to his death, Zeljko worked as a union laborer and earned a vested pension benefit from the Fund, to be paid to Zeljko upon his retirement as monthly annuity for his life. Ac‐ cording to the Fund’s governing documents, when a married participant dies before the benefit commences, the partici‐ pant’s spouse receives a Surviving Spouse Pension, a monthly annuity payable for the spouse’s life. Where the deceased does not have a surviving spouse, the individual’s minor child re‐ ceives a Minor Child Benefit, a monthly benefit payable until the child reaches the age of twenty‐one. After Zeljko’s death, both Anka and the Estate of M.M. sought to recover Zeljko’s pension benefits. The Fund and its administrator filed an in‐ terpleader action to determine the proper beneficiary.

Neither the Fund’s documents nor ERISA address whether a claimant who killed the Fund participant can receive a ben‐ efit. However, a section of the Illinois Probate Act of 1975, known as the “slayer statute,” provides that “[a] person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by rea‐ son of the death.” 755 Ill. Comp. Stat. 5/2‐6. A determination 4 No. 17‐2022 of whether the statute applies “may be made by any court of competent jurisdiction separate and apart from any criminal proceeding arising from the death.” Id. In such a situation, “[t]he property, benefit, or other interest shall pass as if the person causing the death died before the decedent.” Id. Both Anka and the Estate of M.M. moved for judgment on the pleadings. The Estate of M.M. argued that the Illinois slayer statute barred Anka from recovery. Anka claimed that ERISA preempts the slayer statute, or alternatively, that the statute does not apply because she was found not guilty of Zeljko’s murder by reason of insanity. On March 24, 2017, the district court granted the Estate of M.M.’s motion for judg‐ ment on the pleadings, concluding that ERISA does not preempt the Illinois slayer statute and that the slayer statute barred Anka from receiving benefits from the Fund. This ap‐ peal followed.

II. Discussion “We review de novo the district court’s order granting judgment on the pleadings.” Int’l Union of Operating Eng’rs Lo‐ cal 139 v. Schimel, 863 F.3d 674, 677 (7th Cir. 2017). Likewise, we review de novo a district court’s preemption ruling. Kolbe & Kolbe Health & Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 504 (7th Cir. 2011).

A. ERISA Preemption ERISA’s preemption clause states that ERISA “shall super‐ sede any and all State laws insofar as they may now or here‐ after relate to any employee benefit plan” described by ERISA. 29 U.S.C. § 1144(a). The key to determining whether the preemption clause applies is the interpretation of the words “relate to.” Kolbe, 657 F.3d at 504. “A law ‘relates to’ an No. 17‐2022 5 employee benefit plan if it has a connection with or reference to such a plan.” Id. Therefore, ERISA “preempts a state law claim if the claim requires the court to interpret or apply the terms of an employee benefit plan.” Id. (quoting Collins v. Ral‐ ston Purina Co., 147 F.3d 592, 595 (7th Cir. 1998)).

While ERISA is expansive, it does not preempt a state law claim “merely because it requires a cursory examination of ERISA plan provisions.” Id. (quoting Trs. of AFTRA Health Fund v. Biondi, 303 F.3d 765, 780 (7th Cir. 2002)). Indeed, “[s]ome state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw v. Delta Airlines, Inc., 463 U.S. 85, 100 n.21 (1983). And where the state law is “a tra‐ ditional area of state regulation,” the party seeking preemp‐ tion must overcome “‘the starting presumption that Congress does not intend to supplant state law.’” Biondi, 303 F.3d at 775 (quoting De Buono v. NYSLA‐ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814 (1997)). In short: [T]o determine whether a state law has the for‐ bidden connection [to ERISA], we look both to the objectives of the ERISA statute as a guide to the scope of the state law that Congress under‐ stood would survive, as well as to the nature of the effect of the state law on ERISA plans.

Egelhoff v. Egelhoff, 532 U.S. 141, 147 (2001) (internal quotation marks omitted) (quoting Cal. Div. of Labor Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997)); see also Kolbe, 657 F.3d at 504 (“The question whether a certain state action is preempted by federal law is one of congressional in‐ tent.” (quoting Ingsersoll–Rand Co. v. McClendon, 498 U.S. 133, 137–38 (1990))).

Egelhoff, 532 U.S. at 144 (quoting Wash. Rev. Code § 11.07.010(2)(a) (1994)).

The statute applies to “all nonprobate assets,” including an “employee benefit plan.” Id. (quoting Wash. Rev. Code § 11.07.010(1), (5)(a)).

2 The Court noted that plan administrators would be required to “famil‐ iarize themselves with state statutes so that they can determine whether the named beneficiary’s status ha[d] been ‘revoked’ by operation of law.”

Egelhoff, 532 U.S. at 148–49.

No. 17‐2022 7 concluded that the Washington statute “directly conflict[ed] with ERISA’s requirements that plans be administered, and benefits be paid, in accordance with plan documents,” and therefore, “impose[d] ‘precisely the burden that ERISA pre‐ emption was intended to avoid.’” Id. at 150 (quoting Fort Hal‐ ifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 10 (1987)).

Anka argues that the Court’s opinion in Egelhoff “compels a conclusion that [the Illinois slayer statute] is preempted.”

She maintains that based on Egelhoff, “the only logical conclu‐ sion that may be drawn with respect to [the Illinois slayer stat‐ ute] is that it is preempted pursuant to [ERISA] as a law that ‘relates to’ employee benefit plans.” We disagree.

Critically, the Court in Egelhoff commented that slayer stat‐ utes present a different question than the Washington statute at issue in that case. The Court acknowledged that, “[i]n the ERISA context, … ‘slayer’ statutes could revoke the benefi‐ ciary status of someone who murdered a plan participant.” Id. at 152. Nevertheless, the Court stressed “that the principle un‐ derlying the statutes—which have been adopted by nearly every State—is well established in the law and has a long his‐ torical pedigree predating ERISA.” Id. It opined that, “be‐ cause the statutes are more or less uniform nationwide, their interference with the aims of ERISA is at least debatable.” Id. Eight years later, the Court again declined to address whether ERISA preempts state slayer laws. See Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 555 U.S. 285, 304 n.14 (2009).

Since Egelhoff, no federal court of appeals has faced the question of whether ERISA preempts state slayer statutes.3

See, e.g., Hartford Life & Accident Ins. Co. v. Rogers, No. 3:13‐cv‐ 101, 2014 WL 5847548, at *2–3 (D.N.D. Nov. 12, 2014) (“ERISA does not preempt North Dakota’s slayer statute because awarding benefits to the defendant … is contrary to federal common law and congressional intent for ERISA.”); Union Sec. Life Ins. Co. of N.Y. v. JJG‐1994, No. 1:10‐cv‐00369, 2011 WL 3737277, at *2 (N.D.N.Y. Aug. 24, 2011) (concluding that “New York’s slayer rule … is not preempted by ERISA” because it is “of general application … [and its] effect on ERISA is inci‐ dental” (quoting Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir. 1989))); Mack v. Estate of Mack, 206 P.3d 98, 110 (Nev. 2009) (“We conclude that the Nevada slayer statute is not preempted by ERISA, as the application of this statute will not the outcome of [the] case would be the same either way.” Standard Ins. Co. v. Coons, No. 96‐36299, 1998 WL 115579, at *1 (9th Cir. Mar. 16, 1998).

No. 17‐2022 9 affect the determination of an employee’s eligibility for bene‐ fits or the impact on the method of calculating benefits due.” (citation omitted)).5 At least two courts also reached this con‐ clusion prior to Egelhoff. See New Orleans Elec. Pension Fund v. Newman, 784 F. Supp. 1233, 1236 (E.D. La. 1992); Mendez‐ Bellido v. Bd. of Trs. of Div. 1181, A.T.U. N.Y. Emps. Pension Fund & Plan, 709 F. Supp. 329, 331 (E.D.N.Y. 1989).

We agree with those courts that have held that ERISA does not preempt slayer statutes. Slayer laws are an aspect of fam‐ ily law, a traditional area of state regulation. See Egelhoff, 532 U.S. at 152 (“[T]he principle underlying [slayer] statutes … is well established in the law.”); Manning v. Hayes, 212 F.3d 866, 872 (5th Cir. 2000) (noting that “the law of family relations,” including the “fairly uniform set of state laws” describing the

Biondi, 303 F.3d at 775 (quoting De Buono, 520 U.S. at 814); see also Egelhoff, 532 U.S. at 151 (“There is indeed a presumption against pre‐emption in areas of traditional state regulation such as family law.”).

Anka cannot overcome that presumption. In Egelhoff, the Court held that the “presumption [was] overcome” because “Congress ha[d] made clear its desire for preemption.” 532 U.S. at 151. Specifically, the Court held that “the Washington statute ha[d] a prohibited connection with ERISA plans”; it “implicate[d] an area of core ERISA concern” and “inter‐ fere[d] with nationally uniform plan administration.” Id. at 147–48. Here, in contrast, Anka failed to show that Congress intended to preempt ERISA. Unlike the Washington statute at issue in Egelhoff, the axiom that an individual who kills a plan participant cannot recover plan benefits is a well‐established legal principle which predates ERISA. Id. at 152. Indeed, as courts have stated, “Congress could not have intended ERISA to allow one spouse to recover benefits after intentionally kill‐ ing the other spouse.” Conn. Gen. Life Ins. Co. v. Riner, 351 F. Supp. 2d 492, 497 (W.D. Va. 2005), aff’d, 142 F. App’x 690 (4th Cir. 2005); see also Hartford Life & Acc. Ins. Co., 2014 WL 5847548, at *2; Admin. Comm. for the H.E.B. Inv. & Ret. Plan v. Harris, 217 F. Supp. 2d 759, 761 (E.D. Tex. 2002). Accordingly, we hold, consistent with the Court’s dicta in Egelhoff, that ERISA does not preempt the Illinois slayer statute.

No. 17‐2022 11 B. The Illinois Slayer Statute Because ERISA does not preempt the Illinois slayer statute, we must next determine whether, as a matter of Illinois law, the slayer statute applies where the deceased was killed by an individual found not guilty by reason of insanity. The Illinois slayer statute provides that “[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.” 755 Ill. Comp. Stat. 5/2‐6 (emphases added). Thus, our task is to determine whether Anka, who was found not guilty by rea‐ son of insanity at a criminal proceeding, “intentionally” and “unjustifiably” caused Zeljko’s death.

We “must defer to a state court’s interpretation of the state’s statute.” Williams v. Duckworth, 738 F.2d 828, 833 (7th Cir. 1984); see also L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561, 574 (7th Cir. 1993), as amended on denial of rehʹg (Dec. 8, 1993), and abrogated on other grounds by Lexmark Intʹl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (“Of course, federal courts are bound to state court precedents in interpreting state law.”). “In the absence of a decision by the highest state court, … [d]ecisions of intermediate appel‐ late state courts generally control unless there are persuasive indications that the highest state court would decide the issue differently.” L.S. Health & Son, 9 F.3d at 574. While the Illinois Supreme Court has not spoken on whether the current ver‐ sion of the Illinois slayer statute applies to an individual found not guilty of murder by reason of insanity, the Appel‐ late Court of Illinois squarely addressed the issue in Dougherty v. Cole, 934 N.E.2d 16 (Ill. App. Ct. 2010).

The court first examined the Illinois slayer rule’s history. It noted that until 1983, the statute stated: “[a] person who is convicted of the murder of another shall not inherit from the murdered person.” Id. at 19 (emphasis added). Thus, based on pre‐1983 Illinois law, “[w]here an insane beneficiary … kill[ed] the assured under such circumstances as would cause the killing to be murder if the beneficiary were sane, such kill‐ ing [did] not cause a forfeiture of the policy, nor bar[red] his right to recovery for the insurance money.” Blair v. Travelers Ins. Co., 174 N.E.2d 209, 211 (Ill. App. Ct. 1961) (alteration in original) (quoting Holdom v. Grand Lodge of Ancient Order of United Workmen, 43 N.E. 772, 774 (Ill. 1895)); see also Lincoln Nat. Life Ins. Co. v. Johnson, 669 F. Supp. 201, 203 (N.D. Ill. 1987) (concluding, based on pre‐1983 Illinois law, that “it is clear that the murderous beneficiary rule … [did] not apply where the killer was insane at the time of the killing”).6

6 Although Johnson was decided in 1987, the killing at issue in that case occurred in 1982, so the pre‐1983 rule for insane killers applied.

No. 17‐2022 13 In 1983, the statute was amended to its current form.

Dougherty, 934 N.E.2d at 19. According to the court, “[t]his change significantly broadened the scope of beneficiaries who fell under the statute from only those convicted of murder to anyone who intentionally and unjustifiably causes a death, without regard to whether a criminal conviction results there‐ from.” Id. at 20; see also In re Estate of Vallerius, 629 N.E.2d 1185, 1188 (Ill. App. Ct. 1994) (“Obviously, the statute as amended in 1983 is, by design, much broader and more comprehensive ….”); In re Estate of Hook, 566 N.E.2d 759, 767 (Ill. App. Ct. 1991) (“[W]hile the prior [slayer statute] required conviction of the murder of another before a person could be barred from inheriting or receiving distribution from the estate of the mur‐ dered decedent, conviction of first or second degree murder under the present Act is not required ….” (citations omit‐ ted)).7 The court in Dougherty also examined the legislative his‐ tory of the 1983 amendment, and noted that one representa‐ tive “appear[ed] to make the point that the law at the time prohibited a convicted killer from inheriting, and the amend‐ ment to the law would extend the bar from taking to acquit‐ ted, insane killers who killed intentionally and unjustifiably.” 934 N.E.2d at 22. The court thus determined that by passing the amendment, the Illinois legislature superseded the prior slayer rule regarding insane killers. Id. at 20; see also State Farm Life Ins. Co. v. Smith, 363 N.E.2d 785, 786 (Ill. 1977). In sum, the

There is no evidence that the Illinois Supreme Court would disagree with the Dougherty court’s analysis. Indeed, a textual examination of the Illinois slayer statute and the Illi‐ nois insanity statute leads to the same conclusion.8 The slayer statute applies to bar recovery from any person who “inten‐ tionally and unjustifiably causes the death of another.” 755 Ill. Comp. Stat. 5/2‐6 (emphases added). And the Illinois insanity statute provides that “[a] person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreci‐ ate the criminality of his conduct.” 720 Ill. Comp. Stat. 5/6‐2 (em‐ phasis added). Put simply, an individual may not appreciate the criminality of her conduct, but still have “intentionally” and “unjustifiably” caused a death. Indeed, in this case, the judge at Anka’s criminal trial made an explicit finding that Anka “intended” to murder Zeljko “without justification,” despite concluding Anka was not guilty by reason of insanity.

The district court’s conclusion in this regard is supported by the facts. First, Anka intended to kill Zeljko. As the district

No. 17‐2022 15 court properly reasoned, in analyzing the intent requirement of the Illinois slayer statute, “we do not consider criminal in‐ tent (‘mens rea’), we consider civil intent. Civil intent only re‐ quires showing that a person intended his or her actions; there is no requirement that the person have knowledge that his or her actions were wrongful.” Laborers’ Pension Fund v. Miscevic, No. 1:16‐cv‐5865, 2017 WL 5904664, at *1 (N.D. Ill. Mar. 24, 2017); accord Osman v. Osman, 737 S.E.2d 876, 880 (Va. 2013).

Here, Anka intentionally stabbed Zeljko in his sleep and in‐ tentionally hit Zeljko in the head with a baseball bat to pre‐ vent him from calling the police. To be sure, like the killer in Dougherty, Anka was unable to appreciate the criminality of her conduct. But also like the killer in Dougherty, Anka in‐ tended her actions.

Second, the killing was unjustifiable. An insanity defense is an “excuse” defense, not a “justification” defense, and “[c]riminal law theorists have long distinguished between [these] two types of affirmative defenses.” Russell D. Covey, Temporary Insanity: The Strange Life and Times of the Perfect De‐ fense, 91 B.U. L. Rev. 1597, 1632 (2011). In fact, “insanity and justification are directly at odds.” Id. at 1641. “Justification … suggests praise for persons who are able to see situations clearly and exercise sound judgment under difficult circum‐ stances. Insanity suggests tolerance or empathy for those who cannot see clearly at all.” Id. at 1642. Put another way, justifi‐ cation defenses, like self‐defense, allow “action which society otherwise seeks to prevent [to] become[] permissible under the circumstances.” People v. Allegri, 487 N.E.2d 606, 608 (Ill. 1985). In contrast, excuse defenses, like insanity, “do[] not turn unacceptable behavior into permissible conduct, but only ex‐ cuse[] the individual from criminal punishment for having vi‐ olated a penal statute.” Id.; see also Osman, 737 S.E.2d at 880– 16 No. 17‐2022 (“[A] person who has committed a justifiable homicide is not a person who has committed a ‘wrong’ .... A person who committed an excusable homicide, however, may have com‐ mitted a wrong in the initial provocation.”). Thus, while Anka’s killing is excused because she “lack[ed] substantial ca‐ pacity to appreciate the criminality of [her] conduct,” it is not justified. See 720 Ill. Comp. Stat. 5/6‐2.

Anka seeks to save her argument by asking us to look to other state courts. States are split as to “whether the insanity defense to criminal liability also applies as a defense to the application of the slayer statute.” Boyd v. Boyd, 149 F. Supp. 3d 1331, 1336 (N.D. Ala. 2016) (declining to reach the issue). On the one hand, several states have determined that a finding of not guilty by reason of insanity negates a bar to inheritance.

See, e.g., In re Armstrong, 170 So.3d 510, 516 (Miss. 2015) (“Be‐ cause an insane person lacks the requisite ability to willfully kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of killing.”); In re Valamudi Estate, 443 A.2d 1113, 1117 (N.J. Su‐ per. Ct. Law Div. 1982) (“[T]he perpetrator of a homicidal act committed while legally insane cannot be, as a matter of law, one ‘who intentionally kills’ within the meaning of [the New Jersey slayer statute].”); Simon v. Dibble, 380 S.W.2d 898, 899 (Tex. Civ. App. 1964) (concluding that an insane person is “not capable of willfully taking [a] life”).9

No. 17‐2022 17 On the other hand, other state courts have held that their slayer statutes do bar individuals found not guilty by reason of insanity from recovering benefits. See, e.g., Osman, 737 S.E.2d at 879–80 (concluding that even though the defendant “avoided criminal sanctions because, due to his mental ill‐ ness, he did not understand his actions were wrongful,” he still “intended his actions”); In re Estate of Kissinger, 206 P.3d 665, 671 (Wash. 2009) (en banc) (holding that the slayer statute applied because “the trial court made very specific findings of fact and conclusions of law and determined that [the indi‐ vidual] acted with premediated intent”).

Ultimately, regardless of other state courts’ interpretations of other states’ slayer statutes, we are tasked with determining how the Illinois Supreme Court would interpret the Illinois slayer statute. In Dougherty, the Appellate Court of Illinois is‐ sued a clear and well‐reasoned opinion: the Illinois slayer stat‐ ute applies to bar recovery by individuals who committed a killing but were found not guilty of murder by reason of in‐ sanity. We have no reason to believe that the Illinois Supreme Court would disagree with this decision. Therefore, we con‐ clude the Illinois slayer statute bars Anka from recovering from Zeljko’s pension benefits.

III. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court.

Ct. App. 1984); Estates of Ladd v. Ladd, 153 Cal. Rptr. 888, 891–94 (Ct. App. 1979); Quick v. United Benefit Life Ins. Co., 213 S.E.2d 563, 567 (N.C. 1975).

And some states required the killer to be criminally convicted. See, e.g., Turner v. Estate of Turner, 454 N.E.2d 1247, 1252 (Ind. Ct. App. 1983); In re Hoffman’s Estate, 39 Pa. D. & C. 208, 209 (Orphans’ Ct. 1940).