Wrongful Death and Probate

Wrongful death lawsuits and probate proceedings are both civil legal matters that occur after somebody has died.

When the death of a loved one is caused by another individual or entity, it can lead to the filing of a wrongful death lawsuit and, ultimately, the awarding of compensation to surviving family members. Probate is a court proceeding that deals with administering a decedent’s estate, inventorying their accounts and property, paying off creditors, and making distributions to heirs or beneficiaries.

While probate proceedings are fairly common when a person dies, very few deaths give rise to a wrongful death claim. However, wrongful death and probate can intersect if somebody dies due to another’s misconduct.

State laws vary on who has the legal authority to file a wrongful death case. There is also considerable state variation on how the proceeds of a wrongful death claim are distributed to survivors.

What Is a Wrongful Death?

A wrongful death, as the term implies, is a death that results from the “wrongful” action of another, such as negligence, carelessness, recklessness, or intentional conduct.

Both individuals and entities, such as businesses and governments, can commit a wrongful action that leads to death. For example:

• A person drives drunk and kills somebody else in a car accident
• A doctor negligently fails to diagnose or treat a patient’s medical condition that proves to be fatal
• A company manufactures a toxic chemical that causes a deadly illness
• One person assaults another and kills them

Wrongful death is a matter of civil law, although in some cases—perhaps most famously the O.J. Simpson case—a person’s death can lead to both criminal and civil charges.

Who Can File a Wrongful Death Lawsuit?

A wrongful death lawsuit can award damages to pay for the decedent’s medical bills, pain and suffering, and funeral expenses. It can also provide money to survivors for their economic and emotional injuries, such as loss of financial support, household services, and love and companionship.

The question of who can file a wrongful death lawsuit comes down to state law. Generally, states allow one of the following to sue:

• Survivors of the decedent designated by state law, such as a surviving spouse or romantic partner, children, parents, or siblings
• The decedent’s estate, via their personal representative (referred to in some states as an executor)

In states where survivors are allowed to sue for wrongful death, the right to file suit is typically prioritized based on the closeness of the relationship, with a surviving spouse and children given priority.

Some states allow groups of survivors to sue. Others give priority to family members and give them a limited amount of time to file a lawsuit, and, if they fail to do so, additional relatives and even unmarried domestic partners can then sue.

There are also certain states where only the decedent’s probate estate can file a wrongful death lawsuit. In these states, the personal representative of the probate estate (for example, a family member or a lawyer) is the only party who has the legal authority to act on behalf of the estate and file the lawsuit. The personal representative of the probate estate might be someone who was named in the decedent’s will or appointed by a judge according to state law if the decedent died without a will.

Wrongful Death, Estates, and Probate

Probate is not always necessary when someone dies; there are instances when the value of the decedent's money and property is small enough to avoid probate, or the family uses estate planning tools such as living trusts to avoid it.

Wrongful death claims, as previously mentioned, are relatively uncommon. In 2022, there were just over 227,000 preventable deaths caused by injuries nationwide and not all of these were wrongful deaths.^[1]

Even if a person has no accounts or property or if their estate is otherwise eligible to skip probate, numerous factors can make opening an estate and filing for probate necessary to resolve a wrongful death claim.

Here are some areas where a wrongful death claim overlaps with opening an estate and engaging the probate court:

• In states where only the personal representative (also known as the executor or administrator) of the estate is authorized to bring a wrongful death lawsuit, the local probate court must appoint a personal representative to file the wrongful death claim. This step is required whether or not the decedent left a will naming a personal representative, regardless of whether they are suing on behalf of the estate or on behalf of the decedent’s survivors.
• The decedent could have incurred medical debt between the time of their injury and their death. Portions of the wrongful death settlement could also be taxable. These debts might need to pass through the estate to pay off creditors, which would require petitioning the probate court to open an estate for the wrongful death case.
• Some state courts award wrongful death damages to the estate, which then distributes payments to survivors rather than awarding damages directly to survivors.
• In some jurisdictions and situations, wrongful death damages are subject to probate because the court must approve the division of accounts and property before they are distributed to beneficiaries. This can occur with or without a will.
• There may be people eligible for wrongful death damages who were not named as beneficiaries in the decedent’s will. The probate court may need to approve payments to these individuals.
• If probate and a wrongful death claim are ongoing at the same time, the estate cannot close until the lawsuit is resolved because the proceeds will likely be considered part of the deceased person’s estate.
• The wrongful death claim could be settled out of court before a lawsuit is filed, but to receive the settlement money from the defendant, the defendant must first be released from liability—something that only the personal representative of the probate estate can do on behalf of the estate.

To summarize, if a wrongful death lawsuit is filed, it is likely to trigger probate and court involvement considerations in one way or another. The specific ways in which wrongful death and probate intersect, however, are largely dependent on state law.

Who Gets the Money from a Wrongful Death Lawsuit?

Determining who benefits from a wrongful death settlement or jury verdict, like other aspects of a wrongful death lawsuit, comes down to state statute.

The different ways that states approach the distribution of damages awarded in a wrongful death lawsuit include the following:

• State intestacy laws: the laws that dictate how a decedent’s money and property are distributed when they die without a will
• Agreement among surviving family members: using a family settlement agreement, a type of contract that family members put in writing and sign
• In proportion to the losses suffered by each surviving family member: potentially based on the value of their lost support and services
• According to the terms of the decedent’s will
• At the discretion of the probate court
• Based on the level of dependency of the survivors

As these examples show, there is a high degree of variability among states about wrongful death lawsuit award distributions. States may give significant latitude to family members to decide how the proceeds should be split or strictly adhere to statutory provisions.

States also vary on the types of damages that can be awarded in a successful wrongful death claim. Most state laws allow economic and noneconomic damages to be recovered, but they may give itemized descriptions of the specific damages that can be awarded to particular survivors and distinguish between damages recoverable by survivors and recoverable by the estate. In some states, each heir must present evidence to the court of their losses to receive a share of the wrongful death damages.

Talk to a Lawyer About Wrongful Death and Settling an Estate

Closing the book on a loved one’s estate can be procedurally complicated and emotionally difficult no matter the circumstances of their death, but if their passing also involves a wrongful death claim, the situation can become much more emotional and increasingly complex.

Whether you are a personal representative or family member responsible for filing a wrongful death lawsuit, an heir seeking to claim a portion of a wrongful death payout, or you want to make sure that your estate plan anticipates the possibility of a wrongful death and addresses how to best deal with it, we can help with the probate side. And we also know personal injury attorneys we can refer you to for the wrongful death claim, if one is needed.

Contact us to set up a time to talk about the intersection of wrongful death, probate, and estate law.

[1] Nat’l Safety Council, Deaths by Demographics, https://injuryfacts.nsc.org/all-injuries/deaths-by-demographics/sex-age-and-cause/ (last visited June 6, 2024).