All too often, attorneys have clients who have unfortunately had to deal with a wrongful death and navigating their claim through the personal injury and probate processes.
A wrongful death claim can exist when someone dies due to the fault of another person or entity. This could be the result of a car accident or other negligence or misconduct. Beyond the painful emotional loss, family members can find themselves in serious financial hardship, particularly where the deceased was a significant contributor to the household finances.
Wrongful death can intersect with Estate Planning because sometimes the claim itself could be a key asset of the estate. In other cases, it may only be the Estate who can pursue a lawsuit. In addition, separate filings may be required for both the Superior and Probate Courts.
For example, in Arizona, the Arizona Revised Statutes 12-611 to 12-613 address how wrongful deaths are handled. While addressing Arizona, these issues are common across states and the same considerations need to be taken. These are some of the important takeaways.
What Kind of Claims Can Be Pursued?
In some states, a wrongful death lawsuit can be filed if the death of a person is caused by a wrongful act, neglect or default AND they could have filed a personal injury suit had they survived. In other words, if a valid claim would have existed had they survived, it can still be pursued even if they passed away.
Sometimes personal injury lawsuits can be used to recover compensation for the survivors’ loss and can include things such as lost wages, lost companionship, emotional damage, medical, funeral and burial expense among others. This may vary by state but should be similar.
Who Can Pursue a Claim?
After determining whether a claim exists, the next step would be to determine WHO can bring a lawsuit for the wrongful death. The parties that can bring a lawsuit are limited by state statute. States may handle this differently, but identifying the parties who can act is critical.
Many states allow a surviving spouse, child, parent or guardian, or personal representative of the estate to bring a lawsuit for wrongful death.
Who Would be Excluded from Pursuing a Claim?
By looking at who can pursue a claim we can also identify people who would be excluded, such as siblings or other relatives, partners or common law spouses. This may vary in each state.
How Are Damages Awarded?
After a claim is successfully brought, some states dictate that any compensation is to be divided among survivors in proportion to their damages. If the Estate is the party pursuing the claim then the compensation would become an assets of the Estate.
If you or a loved one has been the victim of a wrongful death and need help managing the remaining estate, the assistance of a skilled estate planning lawyer may just be a phone call away.