Wrongful Death Faqs
Unlike a personal injury case, where the injured person is one of the plaintiffs, in the case of a wrongful death action, the decedent’s personal representative brings the action on behalf of survivors and the estate.
“Survivors” means the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.
“Minor children” means children under 25 years of age, notwithstanding the age of majority.
Each survivor may recover the value of lost support and services from the date of the decedent’s injury to death, with interest, and future loss of support and services from the date of death and reduced to present value.
“Support” includes contributions in kind as well as money.
“Services” means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.
In evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
If a survivor has paid medical or funeral expenses due to the decedent’s injury or death, the survivor may recover those expenses.
The decedent’s personal representative may recover for the decedent’s estate the following:
- (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
- If the decedent’s survivors include a surviving spouse or lineal descendants; or
- If the decedent is not a minor child , there are no lost support and services recoverable and there is a surviving parent.
- (b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts paid by a survivor and recoverable to the survivor.
“Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. “Net business or salary income” is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contributions in kind.
All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.
Certain damages recoverable by minor children are not recoverable by adult children and certain damages are not recoverable by parents of an adult child with respect to claims for medical negligence.
The claim must also be evaluated for the availability of potential punitive damages.
No. However, a wrongful death lawsuit allows you to file a civil action against the individual or individuals who caused your family harm.
Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.
Yes, wrongful death claims often involve children or adults who did not have a steady income. Compensation for loss of companionship, care or other method of family contribution may be requested in the wrongful death lawsuit. The loss of non-monetary contributions, such as the role a stay at home mom or housewife provides, is considered a “pecuniary loss” in a wrongful death action.
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