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.
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.
In Wisconsin, either the personal representative or a family member (with limitation) is legally able to file a wrongful death lawsuit.
For a family member to sue, here is the list of those who can file:
- Spouse/domestic partner of the deceased
- Children of the deceased
- Grandchildren of the deceased
- Parents of the deceased
- Grandparents of the deceased
- Siblings of the deceased
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:
- If the decedent has no family members to file on their behalf, then only the personal representative 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.
- 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.
- The wrongful death damages may be awarded to the estate, which then distributes payments to survivors rather than awarding damages directly to survivors.
- 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.
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.
Regardless of who files the wrongful death suit, in Wisconsin, a hierarchy is considered, and if the court awards compensation for wrongful death, a portion of this is set aside for those at the top of the list.
Similar to who can file, here is the list of those who can be compensated in the order of their priority:
- Spouse/domestic partner of the deceased
- Children of the deceased
- Grandchildren of the deceased
- Parents of the deceased
- Grandparents of the deceased
- Siblings of the deceased
Closing the book on a loved one’s estate can be procedurally complicated and emotion
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 refer you to attorneys who are able to help with the wrongful death matter.
[1] Nat’l Safety Council, Deaths by Demographics, https://injuryfacts.nsc.org/all-injuries/deaths-by-demographics/sex-age-and-cause/ (last visited May 27, 2024).
Posted in: Probate