Wrongful Death Legal Questions & Answers
Research Your Legal Rights As A Family Member of a Wrongful Death Victim
- Page 1
Which Factors Determine The Settlement Value of a Wrongful Death Case?
There are a number of different variables and factors that can ultimately affect or determine the value of a wrongful death case. It is important for someone pursuing a wrongful death claim to understand what these factors may be and why they can have an impact on civil claims.
Ultimately, we came up with a list of the eight biggest factors that can affect wrongful death settlements and awards, but there are likely even more factors depending on the exact type of case and the details involved. If you or a loved one is currently dealing with the wrongful death of a family member, it may be in your best interests to read through and share these potential issues with them as you pursue a claim:
1. Damages and losses attributed to the deceased and their dependents.
The value of a wrongful death case will depend on the number of claimants involved and the damages that are recoverable. The wrongful death of a single, childless 19-year-old young man who is a high school dropout and also unemployed may be much different compared to the wrongful death of a 38-year-old married physician who is a husband and father of four children ages 2,4, 6 and 8.
With the latter scenario as an example, the surviving spouse and each child may have individual claims for the loss of their husband and father. In addition, the physician’s estate has a claim for future lost net earnings, which may be worth millions of dollars if he was a high earner, as many doctors are. On the other hand, the 19-year-old’s death may only involve the estate’s claim for lost earnings, which may be difficult (if not impossible) to predict if his education and employment background is difficult to define.
2. Yourself and other family members or loved ones as witnesses in the claim.
Whether or not a jury will have sympathy for you isn't as influential as whether a jury will like you. This depends on many things. Will they feel empathy for you or will they dislike you? What prejudices will they have for you and against you? Do jurors know someone who has suffered a loss like yours?
The claim adjustor's perception of a jury’s prejudices will also affect the value the insurance company or responsible company places on your claim. Look at the three examples of Jimmy. In each of them, Jimmy’s mom and dad will likely have sympathy from the jury as a cornerstone of the case. The claims adjustor will want to take Mom and Dad’s statement, get a feel for them as people to test the built-in sympathy factor, and if the parents pass the test, serious settlement discussions may follow. If Jimmy’s parents present as rude, obnoxious, or unsympathetic personalities, that could be a road block to settling the case.
The unwritten rule in personal injury law is that, all things being equal, juries have more sympathy for people they respect and can relate to. If the deceased person’s surviving family members come across as likeable, trustworthy, respectable, and genuinely sympathetic, then the jury is likely to award a higher verdict then if family members appear dishonest, unlikeable, and unsympathetic.
If the jury perceives that the survivors are using the lawsuit to “try and get rich” then the verdict may be disappointingly low, or the jury may find in favor of the defendant. But if the jury believes the survivors have suffered and endured much grief and loss as a result of their loved one’s death, then the verdict is likely to be high or at least satisfactory given the other facts and/or legal issues involved.
3. The jury’s perception of how valuable a life the deceased led, and how “good” or “bad” the deceased was.
Whether the deceased was a “good” person, or if you had a “good” and close relationship with the deceased, is one factor that is also likely to color a jury’s view of a claim. It is easier to give more money for the death of a “valuable” or nice person than it is for someone who is perceived in a negative light.
4. The amount of insurance coverage available to resolve the wrongful death claim.
In most situations, when the defendant (the responsible person or company you're making a claim against) is either a person or company, the realistic maximum amount of money that can be collected regardless of the injury is the amount of the insurance available to cover your claims. Rarely does it make economic sense to pursue defendants beyond the amount of insurance coverage or readily available settlement funds they have set aside.
For example, in the case of a wrongful death claim that has a jury verdict value of $500,000 and a defendant that only has a $50,000 insurance policy, the choices are: 1) do you settle the case for $50,000; or (2) do you go to trial to get a judgment for $500,000, knowing the defendant has no other assets? You could go to trial, but you will likely never recover the higher amount. In a case like this, once you accept the $50,000 policy limit, you can consider the case as done and the expenses are likely minimal. There is no justifiable legal reason to go after more.
If you are looking for more than the defendant’s insurance policy limits, you will have to go to court, get a jury verdict, and then try to collect that verdict from the defendant’s personal assets, if any exist. But filing a lawsuit and going to trial may cost you a minimum of $50,000 just in expenses alone (not including attorney fees). Washington state attorney ethics rules state that the $50,000 expense must be payable by the client and must come out of the recovery. If you get a verdict for more than $50,000, the defendant’s insurance company will tender its $50,000 policy limits to satisfy its contractual obligation to its insured. That money must then be paid to the lawyer to cover the litigation costs, like discovery expenses, expert fees, and so on.
After the defendant’s insurance policy pays out to cover costs, you then will have to try and collect the remaining $450,000 from the defendant’s personal assets to satisfy the $500,000 judgment. If there are no assets, or if the defendant declares bankruptcy (which is likely), then the judgment becomes worthless. If the defendant does have assets, it may then take years and thousands of dollars in additional attorney fees and costs just to pursue collection efforts. This is why it is almost always preferable to accept the wrongdoer’s insurance policy limits instead of going to trial and trying to collect more. To do otherwise is incredibly risky, and you may have to spend a lot of money without any guarantee that you will get that money back. I tell my clients that you might as well go to Las Vegas and spend your money gambling there because at least you’ll know the odds of winning and getting your money back.
5. The identity of the wrongdoer, the type of witness he or she will make, and what he or she was doing at the time of the accident which led to the death of the deceased.
How will the jury view the person who is responsible for the accident which killed your loved one? Was the incident an understandable accident, with little chance to portray the responsible person as being “bad” or needing to be punished? Or was the wrongdoer grossly negligent, had the person been drinking/under the influence been drinking, or intentionally chose to design and build a defective product? Your experienced wrongful death lawyer will help you evaluate the strength or weakness of this factor to help you determine the value of your case.
6. The jurisdiction and venue of your case.
A jury in a sparsely-populated rural county will likely judge the value of a case much differently than a jury in a heavily populated or urban area. The laws of some states may make proving your claim easier or harder. Some trial courts move cases quickly, others take many years to get a case to trial. These two factors are difficult to evaluate on your own, so you will want the help of an attorney.
7. The particular judge and jury you draw.
A judge has a considerable amount of discretion over what evidence will be let in and kept out at trial. Some judges have a reputation for being “defense-oriented” versus “plaintiff-oriented.” You may also draw a conservative jury versus a more liberal jury. (These qualifiers aren’t political in nature, but go to how the jury reacts.) Each might value the case differently. Some judges and juries look more sympathetically on claims of a wrongful death claimant than in other jurisdictions.
8. The skill and reputation of your lawyer and/or legal team.
Some lawyers have handled many different wrongful death cases so they will likely be much more versed in the status and nuances involved with the law that covers these types of claims. The skill of your lawyer will have a great deal to do with the value which is placed on your claim. As with anything in life, skill leads to success, success builds reputation, and, in the case of an experienced legal team, reputation leads to larger, quicker and more economically productive recovery.
Please keep in mind that this is only a hypothetical and simplistic discussion of the eight individual factors that may affect the value of a wrongful death case. If you or a loved one is pursuing a wrongful death claim and has questions about the legal process that require concrete answers, it may be in your best interest to consult with an experienced wrongful death lawyer.
In a confidential meeting, a qualified and experienced attorney will be able to better answer questions about your specific situation and may be able to help you better understand the potential value of the claim. If you would like to speak with someone at Davis Law Group, P.S., about a wrongful death claim, please contact us via the form on this page or call us at (206) 727-4000.
Does Washington State Have a Vehicular Homicide Law?
Vehicular Homicide in Washington State
Washington is one of several states throughout the country that have specific statutes which allow a homicide charge to be brought against an individual who kills another person through the operation of a motor vehicle, either intentionally or negligently. So yes, Washington does have a vehicular homicide law.
It is common for drunk drivers to be charged with vehicular homicide if they cause a motor vehicle accident which results in the death of a person(s).
Vehicular homicide in Washington State is a class A felony and is punishable under chapter 9A.20 RCW:
RCW 46.61.520 Vehicular Homicide – Penalty.
1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle:
a) While under the influence of intoxicating liquor or any drugs, as defined by RCW 46.61.502; or
b) In a reckless manner; or
c) With disregard for the safety of others.
2) Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW, except that, for a conviction under subsection (1)(a) of this section, an additional two years shall be added to the sentence for each prior offense as defined in RCW 46.61.5055.
Note: Subsection (2) clarifies some specifics of the sentencing guidelines related to vehicular homicide involving a DUI.
How Washington's Law Compares to Other States
The state of Washington once had an extremely low average sentence for vehicular homicide, but that changed in 2012 when the state increased the sentencing grid for a person convicted of vehicular homicide. Now, the sentencing range for vehicular homicide is between 78 and 102 months - the same as First Degree Manslaughter.
Vehicular homicide sentences in other states average between 3-10 years prison time for vehicular homicide. Fines for these offenses vary significantly from state-to-state as well.
If you have any additional questions about vehicular homicide and wrongful death claims as a result of a fatal car accident, please do not hesitate to contact our office online here or call 206-727-4000 today to schedule a free legal consultation with Davis Law Group.
Is A Contingency Fee Different In A Wrongful Death Case?
Understandably, most people are wary of hiring an attorney because of the expense involved. Cases involving serious personal injury and wrongful death claims are usually handled by experienced personal injury lawyers on a contingency basis.
With a contingent fee agreement, the lawyer agrees to defer his or her fee until the case successfully resolves. The fee is based on a percentage of the recovery obtained by the lawyer. If there is no recovery, then no attorney fee is owed. Most contingency fees can range anywhere from 25 to 50 percent of the recovery, depending on the type and complexity of the case.
Why Contingency Fees Might Be Higher In Wrongful Death Claims
A wrongful death case can take years to resolve and the lawyer will spend hundreds of hours and thousands of dollars on the case before he or she gets paid. Usually, the riskier and more complex the case, the higher the contingency fee percentage will be.
If a lawyer accepts a wrongful death case that is very complex and/or has a high risk of failure, then that lawyer will usually want to be paid a premium for accepting the risk, since he or she may not get paid after performing hundreds of hours of work on the case.
Contingency fees allow families with limited financial resources to hire the best legal representation possible. This is important because the insurance companies usually retain some of the most expensive and experienced defense attorneys to help deny, delay and defend the wrongful death claim.
Consult With A Wrongful Death Lawyer
If you are seeking answers about a potential wrongful death claim and don't know where to turn, our legal team is here to answer your questions and help you determine if hiring an attorney may be in your best interests. We offer a complimentary case review to anyone who is considering pursuing a wrongful death case and our attorneys work on a contingency fee basis, which means there are no up-front costs and you only pay legal fees after your case has been resolved.
Our lawyers know what legal issues to identify in fatal accident cases and we have extensive experience successfully resolving serious wrongful death claims. Call (206) 727-4000 or use the confidential contact form on this page to speak with someone about your legal rights and options.
What can a wrongful death attorney do for me and my family?
What can/may a wrongful death attorney do for me and my fatal accident case?
- Educate and teach family members (clients) about the claim process
- Educate and teach clients about the court approval and Settlement Guardian ad Litem process
- Educate and teach clients about laws and procedures applicable to wrongful death claims
- Begin probate proceedings and apply to court for appointment of Personal Representative
- Educate and teach clients about the litigation process
- Draft and file petition to appoint the Settlement Guardian ad Litem (SGAL) in cases that involve surviving minor children
- Gather written records and documents to support the claim, including medical records, school records, police reports, etc.
- Perform investigation of the wrongful death claim, including gathering witness statements, photographs, diagrams, and physical evidence
- Read and analyze insurance policies that may apply (e.g., auto, homeowners, health, life insurance, etc.) to see what coverage is available to pay for damages, like medical, hospital, wage loss, and death benefits
- Meet and confer with the medical doctors and other healthcare providers to fully understand cause of death, and/or mental condition of survivors
- Meet and confer with the SGAL to discuss the case and provide all relevant information regarding the claims of surviving minor children
- Obtain specific reports from experts to support the claims for estate and each beneficiary
- Analyze any pertinent legal issues that may affect the case, like contributory negligence, assumption of risk, comparative fault, etc.
- File necessary claim forms with the at-fault governmental agency
- Analyze health insurance or governmental benefit plan to determine whether any money they spent must be repaid
- Analyze and address any liens against the settlement recovery (various healthcare providers, insurers, governmental agencies may file liens seeking to be repaid money for benefits already paid to or on behalf of a surviving spouse and children).
- Help survivors in locating available resources to assist with their needs (local, state, federal, and non-profit assistance programs)
- Contact the insurance company about the claim and conduct periodic discussions with the carrier about the case so that appropriate reserves are set aside to settle the case
- Conduct negotiations with the insurance adjustor in an effort to settle the claim, either prior to litigation or trial
- If a lawsuit is filed, then prepare and draft the summons and complaint to file in court
- Perform investigation to locate the defendants and wrongdoers so that they can be served personally with the summons and complaint
- Arrange for defendants to be personally served with the summons and complaint as required by law
- Prepare and draft written questions for information from the other side (called interrogatories and requests for production)
- Prepare the surviving family members and other witnesses for their depositions
- Prepare for and conduct depositions of the defendant and other lay witnesses
- Discuss and/or meet teachers (or other education/daycare providers) to help understand the effect the loved one’s death has had upon surviving children and their continuing educational resource needs
- When requested by the defense attorney, meet with experts to prepare for their depositions
- Prepare to take depositions of the defendant’s experts, including medical experts, liability experts, damage experts, etc.
- Prepare surviving spouse and/or children for a medical examination requested by the defendant’s medical experts
- Answer questions and produce information and records requested by the other side
- Review and analyze the deceased’s medical records and billings
- Hire other necessary experts to support or prove the claim, including physicians, economists, appraisers, engineers, vocational experts, etc.
- Review and analyze expert reports about the case, including those addressing liability, injuries, cause of death, and damages
- File the necessary documents in court as required by the judge, including witness lists, trial readiness, settlement conferences, etc.
- Prepare the surviving family members and other witnesses for trial
- Create and prepare exhibits for trial
- Organize records and other documentary evidence intended to be introduced at trial
- Prepare for mediation and/or arbitration by organizing records and other documents for submission to the mediator or arbitrator
- Research and write briefs and file motions to keep out or let in certain evidence at trial
- Perform or participate in mock trials or focus groups to prepare for trial
- Over the course of several days, try the case before a judge or jury
- Analyze verdict and research any issues that occurred at trial
- Following the verdict, write briefs or motions to obtain post-trial relief, including motions for attorney fees, or to overturn the verdict
- Analyze trial record to determine if appeal is warranted
- If appeal is filed, research and write necessary briefs and motions
- Negotiate subrogation claims asserted by various insurance companies or governmental agencies that may have provided benefits to survivors
- Review and analyze the SGAL’s report showing recommendation to approve or reject the settlement on behalf of surviving children
- Draft and prepare the petition asking the court to approve the minor child’s settlement
- Attend and argue the court hearing regarding the approval of the minor child’s settlement
- Create and establish blocked accounts for the surviving children
- Provide financial institution with information to open blocked account
- Contact furnisher of annuity and provide all necessary information to conclude the purchase of annuity
- Review and complete all necessary paperwork, release forms, disclosure statements, etc. regarding the annuity purchase
- Review and complete all necessary paperwork, release forms, disclosure statements, etc. regarding the creation of a trust account for benefit of the child
- Draft and file in court the appropriate written proof or receipts showing creation of blocked account, annuity purchase, or managed trust account
This is a general list of the various tasks that a wrongful death lawyer may need to perform in any given case. There may be additional tasks, depending on the facts of the case and the needs of the surviving family members. This list will, at least, give the reader some idea of the type of work that may be necessary to successfully pursue a wrongful death claim in the state of Washington.
What Is The Statute Of Limitations For A Wrongful Death Claim?
There are strict time limits on when a wrongful death case may be filed or pursued in Washington State. This time limit is called the Statute of Limitations.
In Washington State the Statute of Limitations is usually three (3) years from the date of death. This means that the case must either be settled or filed in court within this time or the claim is no longer valid.
Not only is it a dangerous practice to wait until the end of the three-year period before filing suit or settling the claim, but most wrongful death cases should be investigated immediately following the person’s death. Given the potential size and complexity of this type of case, the insurance company will almost always mount an immediate investigation and aggressive defense of the claim.
Being Prepared For The Statute Of Limitations
You certainly want to be prepared for this. You also want to promptly gather evidence to make sure the claim is preserved. This may include gathering witness statements, performing an accident reconstruction, obtaining a private autopsy, and hiring experts, if necessary. In many cases, a prompt investigation can dramatically increase the likelihood of a successful outcome in a wrongful death case.
Although most wrongful death claims must be filed in court within three (3) years of the date of death, this time period may be shorter in certain situations.
For example, if the death was caused by negligence that pre-dated the person’s death (for example, the person was injured and then survived for a period of time before dying) then a case may need to be filed within three (3) years from the date that the negligence was committed. Again, you should immediately consult with an experienced attorney to learn whether a shorter time limit may apply to the case.
What Does The Term 'Survival Action' Mean?
When a person's death is caused by the negligent act of another person, Washington's survival statutes preserve causes of action that the deceased person could have brought had he or she survived.
The purpose of awarding damages under the survival statutes is to remedy the old common law anomaly which only allowed accident victims to sue if they survived an accident but barred the claim if they died.
This means that a survival action is a claim for injuries and damages that the deceased suffered prior to death, and which the deceased could have pursued had he/she lived.
Example Of A Survival Action In Wrongful Death Claims
An example of a survival action would be where the deceased is injured but does not die immediately from those injuries. This time period between the injury and death may be short (a few hours or a few days), or the period may be much longer (a few months or even years).
During this period, the deceased may have incurred more medical bills and other expenses, and may also have experienced ongoing physical pain and mental suffering before death.
In a case like this, in addition to a wrongful death claim the deceased’s estate may also pursue a survival action to recover these pre-death damages which were proximately caused by the at-fault party’s negligence or wrongful act.
How Does a Wrongful Death Insurance Claim Work?
To recover the best settlement, you should know how the insurance company does business. As you already know, the reason any insurance company exists to make a profit. This is the carrier’s primary goal – to make as much money as possible for its executives and shareholders.
In its most simplistic form, the insurance company must take in more money than it pays out. Thus, the insurance company will focus on selling more policies and minimizing its liabilities. Any claim is a liability because it means the insurance company has to pay out money to settle the claim.
The insurance adjustor’s job is to settle claims for as little as possible while other people working for the company (e.g., sales people) try to sell more policies. If the adjustor can spot a defense or weakness in your claim, then his or her job is to make sure the defense or weakness is exploited to the fullest extent possible so that any payout will be minimized.
Insurance Adjusters' Tricks in Wrongful Death Claims
Sometimes an insurance adjustor can actually manufacture a defense or claim in the case. This is done by obtaining favorable statements from you and other witnesses. This could include recovering or eliminating favorable evidence that might help your claim. While the methods used by an insurance company may be ethical, sometimes they are not. I have handled cases where the carrier has deliberately “lost” favorable evidence. Whatever the method used to gather evidence, just remember that the carrier is looking for any way to reduce its payout.
To achieve your goal of recovering a fair and reasonable settlement you must provide the adjustor with strong reasons that it should pay out more to settle the claim rather than less. This may be accomplished by providing the adjustor with certain information or documentation to support your claim. There are certain pieces of information that may be more persuasive than others. How relevant the information is depends on the facts of the case and the status of the law that applies to the claim.
Keep in mind that the more persuasive the evidence submitted to support the claim, the higher the likelihood of a more favorable settlement recovery. Having an experienced attorney working in your corner gives you the absolute best chance of securing a favorable outcome in your case.
What role does the employer-employee relationship play in a wrongful death case?
If the at-fault party was acting within the course of his or her employment when the accident occurred, this may allow for a separate claim against that person’s employer. This is sometimes known as the “Master-Servant Rule.”
For example, employee works for a delivery company and causes an auto accident and injures a third party. If that employee was in the course and scope of his employment, his employer may also be liable to the injured party. The injured party can then pursue a legal claim against both the employee and employer.
Can you file a wrongful death lawsuit for the death of a fetus?
In most wrongful death claims, Washington’s wrongful death statute will also apply to an unborn fetus as long as the fetus was “viable.” Usually, a viable fetus is one that was healthy and was expected to be born healthy if the death of the fetus not occurred.
The wrongful death of that fetus is a recognized cause of action under the statute. What this means is that a child does not have to be physically born before a claim for wrongful death can go forward.
See Moen v. Hanson, 85 Wn.2d 597, 537 P.2d 266 (1975).
Can a parent collect compensation for the wrongful death of a grown child?
The specific statute that permits an action for the wrongful death of a child applies only to minor children - those under the age of 18. If the child is 18 years of age or older, then the general wrongful death statute applies (explained in earlier chapter).
A parent may only bring an action for the wrongful death of an adult child if that parent was financially dependent on the child at the time of death. Also, the parent can only maintain the action if the adult child was single and childless. If the adult child died while married or with children, then only those surviving relatives can benefit from the wrongful death case.
Can someone collect damages for grief, sorrow mental anguish over death of a loved one?
Many people are surprised to learn that in the typical wrongful death case, the surviving family members may not collect damages for the grief, sorrow , and mental anguish they have suffered, and will continue to suffer, from the loss of their loved one. This fact may seem outrageous since the grief and sorrow experienced by survivors is perhaps the most painful and profound type of loss they will experience over the deceased’s death. But that is the law. I will avoid spending too much time explaining why, except to state that the reasoning goes back to when wrongful death laws were first passed by states many, many years ago. The simple answer is that Washington’s wrongful death statutes simply don’t allow it, and only the state legislature can change this.
The good news is that there is one exception to Washington’s prohibition against a beneficiary recovering damages for grief, sorrow and mental anguish. That exception is when the case involves the wrongful death of a minor child. In those cases, a surviving parent can recover damages for sorrow, grief, and mental anguish for the death of the child. This is allowed because there is a specific statute that permits this type of recovery. However, the claim only exists if the child dies when he or she is a minor (i.e., under the age of 18).
Who Can File A Wrongful Death Lawsuit In Washington State?
In the event of a wrongful death lawsuit, Washington state law requires that a Personal Representative be appointed on behalf of the deceased’s estate. In other states, a personal representative is often referred to as the Executor.
Essentially, the person who serves as the Personal Representative acts on behalf of the deceased person’s estate and is given authority by the court to file suit for the purpose of recovering damages in a wrongful death lawsuit. A wrongful death lawsuit cannot be prosecuted until a personal representative is appointed by the court. This means that a probate action must first be completed so that a personal representative is appointed.
Probate Actions In Wrongful Death Claims
A probate action is a special type of legal proceeding that addresses the management and finalization of the deceased person’s estate. Assets and liabilities are accounted for, and any remaining proceeds and assets are divided up among surviving relatives according to a will (if one exists) or based on the intestate statute if no will exists. Once this occurs, the wrongful death lawsuit may then begin.
A wrongful death claim can be filed on behalf of the survivors who are suffering damage from the death of their loved one. The representative is generally the executor of the victim’s estate.
These people are considered “real parties in interest” in legal terms, and often vary in different states. Again, keep in mind that all cases are unique are sometimes this may differ depending on the situation.
The people that would have the authority to file a wrongful death suit, would be:
- Immediate family members. Immediate family members like spouses and children and parents of unmarried children can recover damages under wrongful death.
- Life partners, financial dependents, and putative spouses. A domestic or life partner, anyone who was financially dependent on the decedent, and a "putative spouse" (a person who had a good faith belief that he or she was married to the victim) have a right of compensation. This is in some states.
- Distant family members. Some states allow more distant family members, such as brothers, sisters, and grandparents, to bring wrongful death lawsuits. For example, a grandparent who is raising a child may be able to bring an action (which is why all cases are unique and differ based on the situation).
- Someone who suffers financially. Some states allow all persons who suffer financially from the death to bring a wrongful death action for lost care or support, even if they are not related by blood or marriage to the victim.
- Parents of a deceased fetus. In Washington State, the death of a fetus can be the basis for a wrongful death suit. In several other states, parents cannot bring a wrongful death action to recover for financial and emotional losses resulting from the death of a fetus. This is all dependent on the state laws.
Who Can Be The Personal Representative?
Technically, anyone can be appointed the personal representative. However, the court will usually prefer someone who is reputable and trustworthy. Someone with a criminal background, especially one involving dishonesty or fraud, may be excluded by the court. Oftentimes, the personal representative is a surviving family member or a good friend of the deceased. Sometimes a professional, like another lawyer, can be appointed as the personal representative.
Although there can only be one wrongful death lawsuit, Washington law recognizes that more than one claim may be pursued in the same case. In one claim, an action is brought to recover damages on behalf of the estate (like funeral and healthcare expenses, the deceased’s lost future earnings, etc.). In the other claim, a lawsuit can be brought to recover damages for each surviving beneficiary designated by the wrongful death statute. A surviving spouse may recover separate damages for the destruction of the marital relationship. Each surviving child may recover separate damages for the loss of the parent-child relationship. The damages claimed by each beneficiary are usually distinct and separate from the damages claimed by the estate.
The Personal Representative who brings the wrongful death case will have a fiduciary (i.e., heightened or enhanced) obligation to the other interested parties in the action (like other beneficiaries). This means that the personal representative has a legal duty to protect the interests of the estate and all beneficiaries who may have a right to recover damages in the case. The failure to fulfill this duty may subject the personal representative to legal liability and/or damages.