Probate Pandemonium

High-profile trial pits widow of hedge fund manager against his brothers, who invoke the slayer statute

Cover Story
Seth Tobias trial likely to erupt in probate pandemonium

June 16, 2008
By: Bud Newman

Attorneys in the probate case announced that they have reached a confidential settlement. The Daily Business Review will update the story from a hearing today. 

“I did not kill my husband, Seth Tobias.” That sworn statement by Filomena Tobias about the death of her wealthy hedge fund manager-husband in the pool of their Jupiter home last Labor Day weekend is at the center of a high-profile Palm Beach County probate trial set to begin today. 

Her matter-of-fact denunciation will be balanced against an accusation by the late millionaire’s half-brothers, New Yorkers Sam and Spence Tobias, who allege in court documents that she murdered the heavy-drinking, cocaine-using, hard-partying investor and CNBC stock analyst. 

The drowned man’s brothers claim his wife put ground Ambien, a prescription sleep aid, into pasta sauce, served it to her husband and lured him to the pool where he died after passing out. She flatly denies it. 

The accusation is based solely on an uncorroborated claim that Filomena Tobias confessed to a confidant. And the brothers are trying to use the state’s slayer statute to block her from inheriting her late husband’s estate as his surviving spouse. 

The slayer statute is intended to prevent killers from benefitting financially. 

The biggest obstacle for the brothers may be that law enforcement has not reached the same conclusion — that the wife killed the husband. 

The Palm Beach County state attorney’s office has not charged Filomena Tobias or anyone else with a crime in Seth Tobias’ death, which attracted national media attention including a CNBC documentary and New York Times and New York Magazine articles. 

“Based on the evidence available at this time, including the autopsy and toxicology reports, there is no indication of criminality in the death of Mr. Tobias,” Assistant State Attorney Mary Ann Duggan wrote in a Feb. 11 statement. 

The autopsy report dated Feb. 6 said Tobias, 44, drowned, and a contributing cause of death was “acute intoxication due to the combined effects of zolpidem, cocaine and ethanol” in his system. Zolpidem is sold under the trade name Ambien, and ethanol concentrations in autopsies are a measure of alcohol consumption. 

The report listed his manner of death as “undetermined.” It did not venture into how the sleep aid was ingested, stating, “The particular circumstances regarding the consumption of zolpidem remain unknown.” 

The slayer statute has apparently never been used successfully in Florida against anyone who was not charged in a killing. 

If the brothers prevail using the statute absent even a criminal charge, it apparently would set a precedent. 

Estate law experts said it is possible the brothers could win because “the greater weight of the evidence” threshold in a civil case is well below the “beyond a reasonable doubt” standard needed for a criminal conviction. 

“The standard of proof is so much lower in a probate case than in a criminal case,” said veteran Miami probate attorney Frank Hollander of Hollander & Associates. “The trier of fact has to determine the credibility of the witnesses.” 

Probate experts said the lack of a criminal charge against Filomena Tobias is not an insurmountable obstacle — just a difficult one. 

The slayer statute does not require any criminal proceedings. The Legislature dropped a conviction requirement in 1982. 

Miami criminal defense attorney Neil Nameroff, who works withHollander, does not expect the Tobias brothers to win. 

There is a lot of money at stake. Two knowledgeable sources who requested anonymity said the estate is valued at a total of $35 million, or about $25 million after taxes and other obligations.

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