States Continue to Bury Testimony From the Grave, but Many Dead Man’s Statutes Remain Alive and Well

Wisconsin became the thirtieth state to repeal their state’s form of the dead man’s statute. The term “dead man’s statute” is defined generally as “[a] law prohibiting the admission of a decedent’s statement in certain circumstances, as when an opposing party or witness seeks to use the statement to support a claim against the decedent’s estate.”

Many states that continue to uphold similar statutes may have broader definitions and could potentially bar any evidence for any matter that occurred before the death of a party. Proponents of the statutes claim that they defend the rights of the deceased as they cannot defend themselves, but opponents argue that they ignore the rights of the living.

Thirty states, including California, Florida, Alaska, Delaware, Nevada and South Dakota, do not currently have dead man’s statutes. Some of these states have special hearsay rules that allow a court to exclude out-of-court statements made by a decedent when circumstances indicate that the statements are untrustworthy. 20 states and the District of Columbia retain a form of the dead man’s statute, and all of them are subject to one or more legislatively created or judicially recognized exceptions.

See Monica S. Asher & Joseph V. Viviano, States Continue to Bury Testimony From the Grave, but Many Dead Man’s Statutes Remain Alive and Well, MWE.com, September 20, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.