Pam: Barry since you mentioned it, what is a wrongful death claim or case.
Barry: A wrongful death claim or case isn’t really a specific type of case on its own. Really it’s a type of damage that results from an underlying accident or incident so you can have a wrongful death case that results from a car accident or is we’re talking about a wrongful death case that results from poor care in a nursing home setting.
In either one of these situations you have a an underlying event or underlying negligence that causes the death and there are actually two different parts to any type of a wrongful death claim.
Pam: So two parts. What are those?
Barry: Okay, the two parts are called the wrongful death action and the survival action. The survival action is all of the damage that occurred up until the moment somebody passes away.
So that would include things like medical expenses, lost wages, pain and suffering, disability disfigurement. These are the basic elements of damages in any type of personal injury case, and those are the things that happened up until the moment that somebody passed away because those are things that happen immediately prior to the person passing. Those are considered assets of their estate.
Pam: How is that different from the wrongful death claim?
Barry: All right. There’s an actual statute that’s called the wrongful death act. It allows the surviving next of kin to recover for what’s called under the statute pecuniary area injuries. And this includes things like loss of economic support, the loss of the family relationship or marital relationship in their own grief. So essentially what it does is it recognizes that the people who are surviving next of kin have their own set of damages and these are all the damages that happened as a result of and after the person passed away.
So because this recognizes the damages that resulted from the person’s passing or came after the person’s passing, it’s no longer considered to be part of their probate estate.
Pam: Okay? So you seem to be drawing this distinction between what is or is not part of the estate, why?
Barry: Well, when somebody dies and there is a will, the will will provide for the disposition of the various assets that are part of the estate. Now, if somebody dies and leaves behind four children and some of the children are allocated different shares of the estate, this can be a source of tension.
If there are significant gifts or residual gifts that are being given to people outside of the family, this can cause a good deal of tension. This distinction between what’s part of the estate and what’s not, potentially can be a big issue in any type of a case where somebody dies as a result of an accident.
Pam: You also keep using the term surviving next of kin. What does that mean?
Barry: It’s actually a pretty technical term and there a section within the probate act which designates who the surviving next of kin is. In essence, when you’re married and have children, your spouse and your children will be considered next of kin, but your siblings and your parents might not be, and only people who are considered surviving next of kin are entitled to recover damages. Under the wrongful death act.
I know that the surviving next of kin are the one who benefits but who is your client.
So when somebody dies, one person has to be put in charge of the affairs of the estate. If there’s a will, the will designate somebody to be the executor of the estate and that’s the person who gets to make the decisions concerning whether a lawsuit’s going to be filed.
If a settlement offer is going to be accepted. If there’s no, will then there’s a procedure that you go through in probate court where you have somebody appointed as the administrator of the estate and for all practical purposes, those are essentially the same thing, but the administrator would be the one who gets to make the decisions about whether a lawsuit’s going to be filed. Lawsuits can be filed against and if one’s going to be filed, whether settlement offer will be accepted eventually or not.
Pam: What happens once the case gets resolved? What happens with the money from the settlement?
Barry: Well, the answer is going to vary depending on whether or not the case was actually tried to a verdict or settled somewhere short of actually going to trial. The first level on this, in sort of the ideal situation is that everybody is going to be in agreement as to how the money from the settlement will be divided up and if that’s the case in everyone is an adult.
If everybody is in a position where they could make their own decisions in terms of being legally competent to do so, then it’s just a matter of having the court authorize the agreement that everyone who has reached the more complex situation is one where there is some degree of disagreement as to how the funds from the settlement will be divided up and that can get to be quite contentious. But essentially you have to start first by allocating money between the survival portion in the case.
In the wrongful death portion of the case, once there’s certain money that’s allocated to be survival portion of the case, there’s a statute called the statute of intestate descent and distribution, which is a fancy term for it. This is what happens when there’s no will. It sort of sets forth mechanically. This is how the money gets divided up when there’s no will now as to the money that’s allocated to the wrongful death portion in the case.
There are three basic elements to what you recover as part of a wrongful death case and that would essentially be the loss of the family relationship, loss of economic support, and your own grief. Those are the basic ones. How that money gets divided up, eventually would be determined by a judge and essentially the judge will make a finding of what’s called under the wrongful death statute of the percentage of dependency.
Essentially how it works is that if your percentage of dependency is, let’s say 20%, you would get 20% of the money that’s allocated to the wrongful death portion of the statute. This can be contentious issue when people aren’t in agreement as to how this money should be divided amongst them. Ideally, you hope that everybody whose family can reach it, amicable agreement as to how this should all be divided up. That’s not always the case. Eventually it’s going to be a situation where it has to be resolved by the judge.