Wrongful Death and Your Estate
February 6th, 2018
Most people have heard about personal injury lawsuits (and we’ve almost all seen the commercials). Someone brings these lawsuits when he is injured, for example, due to someone else’s negligent or intentional act. The damages are, in essence, intended to “make you whole.” This might include damages to pay your medical costs, compensate you for pain and suffering, and pay for income you lost due to being injured. But when the person injured dies as a result of the other’s acts, the type of lawsuit changes. Now it is a wrongful death claim.
Traditional Personal Injury
When someone is injured, such as in a car accident or an on-the-job injury or other negligent or intentional acts, the injured person can often sue the injury-causing party to pay for the injured person’s damages. Damages might include things like pain and suffering, medical expenses, loss of income, and property damage. The injured person is the plaintiff (the one who brings the lawsuit), and it is up to that person to decide whether to settle a case. But if that injured party dies due to the injuries, that action ends, and a new type of lawsuit emerges: wrongful death. Florida law covers this area specifically.
Wrongful Death Actions
The first problem with bringing a wrongful death action is that the person who was suing, the injured party (the plaintiff), is now deceased. Florida specifies that the personal representative (PR) is the new party to sue on the deceased’s behalf. The damages recovered in this portion of the suit will go to the estate. The PR may sue for losses that are paid to the deceased’s estate such as unpaid medical expenses, unpaid funeral expenses, and loss of income. The statute does not, however, allow the PR to sue for the deceased’s pain and suffering that occurred between the date of injury and the date of death.
The other side of a wrongful death action is also brought by the personal representative. These claims, however, are intended to compensate the survivors and are apportioned to them after recovery. Survivors under the statute include people such as the deceased’s spouse, children, and parents and sometimes other blood relatives or adoptive siblings. For some recovery, the law considers the relationship between the deceased and the survivor. For other issues, the law considers who else survived and how old the deceased was and how old any children are. The recovery under this portion of a wrongful death action is intended to compensate for things like loss of companionship, loss of support, and loss of future support. This brief overview is not intended to provide a deep knowledge base of these actions. Instead, these actions should certainly be brought by a knowledgeable personal injury attorney.
Wrongful Death and Estate Planning
Two key points arise with estate planning and wrongful death. First, when you name your personal representative (called the executor or executrix in other states) in your will, you are also naming whom you trust to carry forward with this sort of lawsuit. This can be a big responsibility. Thus, as always, careful consideration should be included when choosing this person. (This is also another reason to consider making sure your PR is compensated for her work; this could be a bigger job than you initially anticipated.)
Second, consider too the problems if you do not have a will. First, you won’t have named a personal representative. This leads to needless potential confusion and chaos among family members deciding who will bring the action. Also, though, once a recovery might be available to your estate, things will surely run smoother for the PR and your family if you’ve already made provisions for how anyone will inherit: outright, in trust, etc.
What to Do if You Have a Wrongful Death Action
If you have lost a loved one due to someone else’s negligent or intentional act, you should work with a team of attorneys. First, an attorney to help you through the probate process is essential. Often the court will need to extend a probate during the course of a wrongful death action. Second, you will want to work with a personal injury attorney to help protect the claim. McCreary Law Office knows several attorneys in these areas and will be happy to pass along a list of names.
But before all of that, working with an estate planning attorney now can make any future paths much smoother. As Benjamin Franklin noted, death (in addition to taxes) is certain. But the manner in which you die is not. Having your estate in order with properly named fiduciaries, clear identification of your beneficiaries, and your specific wishes written out will almost always mean less trouble for your family later.