The sexual harassment claims against him could be complicated by a 19th-century New York state law that bars people with stakes in lawsuits from testifying about private conversations with parties who have died.
Ailes, 77, died from bleeding on the brain caused by a fall last week at his home in Florida, according to the Palm Beach County Medical Examiner.
His departure from Fox News in July amid a sexual harassment scandal abruptly ended his 20-year reign at the cable channel that helped reshape American politics with conservative-leaning hosts such as Bill O’Reilly and Sean Hannity.
Former anchor Andrea Tantaros and contributor Julie Roginsky have claimed in lawsuits that Ailes harassed them and that Fox News retaliated against them for rebuffing him. The Tantaros case is in arbitration in New York and the Roginsky case is pending in Manhattan State Supreme Court.
The law, commonly known as the “dead man’s statute,” is rarely invoked outside of cases involving disputed wills and estates, lawyers and law professors said. But if the law is raised by Fox or Ailes’ estate, it could set back Tantaros and Roginsky, whose key claims are based on private conversations with Ailes.
“If no one else was there, you probably have to build your proof another way,” said Stephen Gillers, a professor at NYU School of Law. The law would only apply to lawsuits in which Ailes is named as a defendant.
Shock and Grief
Fox News, which Ailes started in 1996 with the backing of media mogul Rupert Murdoch, raised the temperature of on-air debate on U.S. television, generally taking a hardline conservative view. It has had a mixed relationship with U.S. President Donald Trump, a longtime friend of Ailes, but was instrumental in his election victory in November.
Ailes received a severance package of about $40 million when he left Fox News, owned by Murdoch’s Twenty-First Century Fox (FOX), according to a source familiar with the situation. He went on to serve as an informal adviser to Murdoch.
“Everybody at Fox News is shocked and grieved by the death of Roger Ailes,” Murdoch said in a statement.
“Roger and I shared a big idea which he executed in a way no one else could have,” he added. “Roger was a patriot, who never ceased fighting for his beliefs.”
Hannity paid tribute on his show to his former boss.
“Today America lost one of its great patriotic warriors,” he said in a statement read on the channel. “For decades, RA (Roger Ailes) has impacted American politics and media. He has dramatically and forever changed the political and the media landscape single-handedly for the better.”
Democrats also weighed in on someone they often saw as a foe. “I knew Ailes. Competed against him in campaigns,” said David Axelrod, ex-adviser to former President Barack Obama, on Twitter. “Railed against him many times. But appreciated our frank, back-channel conversations.”
Sexual Harassment Lawsuits
Fox has been roiled by sexual harassment claims for more than a year, which prompted Ailes’ exit last summer. In April O’Reilly, the channel’s most-watched host, was also forced out after the New York Times reported that Fox and O’Reilly had paid five women a total of $13 million to settle harassment claims.
Bill Shine, co-president of Fox News who had been at the channel since its inception, also left this month. Despite the high-profile departures, Fox News ratings have remained strong.
Ailes’ chief lawyer Susan Estrich did not respond to a request for comment about the state of the lawsuits.
Before his death, Ailes took steps to limit any financial loss from lawsuits. He bought an oceanfront home in Palm Beach for $36 million shortly after leaving Fox News and declared himself a state resident, according to public records.
The moves allowed Ailes to take advantage of Florida “homestead” laws that protect residential property from claims by creditors, according to Lee-Ford Tritt, a professor of estates and trusts at the University of Florida.
“Florida has amazing creditor protection,” Tritt said. “It’s why people like O.J. Simpson bought a house there.”
The legal protections will likely pass onto his wife, who would typically inherit control of the house under Florida law barring a prenuptial agreement to the contrary, Tritt said.
Ailes also owned homes in Cresskill, New Jersey, and Garrison, New York. The Cresskill home was up for sale at the time of his death, according to public records.
Palm Beach County Medical Examiner’s office said Ailes died of complications from a subdural hematoma—a pool of blood on the brain—caused by a fall at home that injured his head. A Palm Beach police report showed Ailes fell on May 10.
The medical examiner’s report said Ailes’ hemophilia, which prevents blood clotting, contributed to his death, which it said was accidental with no evidence of foul play.