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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.

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 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, our attorneys can help. 

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

Mark your calendars: January 28 is International LEGO day, which celebrates the date when the patent for the globally famous plastic brick system was filed. 

Since the 1940s, people have been creating their own worlds, brick by brick, with LEGOs. With an estate plan, you can help your loved ones build a great future. Make your estate plan as specific as you want by providing step-by-step instructions for how you want them to honor your legacy. Or give them the resources to bring their vision to life, no strings attached. 

Either way, an estate plan—like LEGOs—makes a great gift that can be enjoyed by generations to come. 

January 28 and LEGOs

The history of LEGOs began in 1932, when carpenter Ole Kirk Christiansen began making wooden toys in his shop. In 1936, he named his company LEGO, combining the words in the Danish phrase leg godt, meaning “play well.” 

Following World War II, the availability of plastics in Denmark changed the company’s trajectory. Christiansen purchased a plastic injection molding machine and, inspired by interlocking plastic bricks produced by a competitor, he launched the forerunner of modern LEGO bricks in 1949, calling them Automatic Binding Bricks. 

But it was not until 1954 that Christiansen had the aha moment that would make LEGOs world-famous. Until then, his plastic bricks were seen as more of a stacking toy than a system that allowed every brick to fit together and be used in multiple ways. During a business trip to the United Kingdom, a serendipitous conversation with a toy department manager provided the spark that led Christiansen to produce the first LEGO system in 1955.

Customers complained, however, that models built from the plastic brick system lacked stability and clutch power. Godtfred Kirk Christiansen, who had taken over day-to-day operations from his father, hit on the idea of a coupling principle that used a three-tube design. 

The LEGO Group filed a patent for the new building system on January 28, 1958. This design unlocked the LEGO building blocks that are known and loved to this day for their endless building possibilities. 

Draw Inspiration from LEGOs for Your Estate Plan

International LEGO day honors the legacies of the Danish father and son whose passion and creativity spawned one of the best-selling toy lines of all time. The system approach to LEGOs has made it infinitely upgradeable, able to piggyback on changing tastes while remaining timeless. 

LEGOs can inspire not only hobby builders but also estate planners. Like LEGO sets, estate plans can be built in any way imaginable. If you can dream it, you can build it with an estate plan that customizes your legacy and lays down generational building blocks. 

Here are a few estate planning ideas from popular LEGO sets. 

Dream House

For many families, memories are rooted in the places they call home. As children move away and families spread out geographically, there may be a special place, such as a grandparents’ home or a vacation home, that everyone returns to for holidays, family reunions, and other special occasions. 

Passing down a home can keep it in the family, ensuring that new memories are made and old ones are kept alive. There are several ways to leave your home to loved ones, including through a will, co-ownership, a trust, a transfer-on-death deed, or a limited liability company in some states. 

Because the family may not want to deal with maintaining and upkeeping the home, an alternative is to leave a monetary gift that the beneficiary can use to purchase a new house. Everyone has a different idea of what their “castle” looks like. It could be an alpine lodge, a suburban family house in the brick colonial style from Home Alone, or a tiny home for the intrepid minimalist. 

World Travel

Among younger generations, there is an emphasis on spending time and money on experiences rather than amassing material goods. An Eventbrite survey found that nearly 80 percent of millennials would choose to spend money on an experience over buying an object they desired. 

Travel is a major part of the so-called experience economy. Most bucket lists include at least one travel destination. In 2023, due in part to pent-up pandemic demand, Americans reported spending more on travel and traveling longer. 

An estate plan gift can help loved ones cross off bucket-list destinations and fulfill their dreams of seeing the world. Travel money can be gifted to an individual or set aside for a group trip that lets the family visit a special destination. Send them to see the wonders of the world or set aside money for a more personal journey to the small village from which your ancestors emigrated. 

Education

No gift keeps on giving quite like an education. Educated people are more likely to reap benefits throughout their life. More education is often linked to higher income, which is in turn linked to greater wealth and better health. 

Money placed in a trust for education can come with attached terms that a trustee oversees. For example, the trust may specify that the funds may only be used to pay for a college education, or, if the University of Brickester is not in the cards, a vocational training program. 

Trust money could fund a nontraditional path as well. Does somebody in your life aspire to write a book or design their own LEGO set? Gift them a nest egg that offers the financial freedom to bring their idea to life. 

Give Back

The legacy wishes of some individuals extend outside their immediate family and are focused on the greater good. For the philanthropically minded, a charitable gift can support a cause that they are passionate about. 

Maybe you are committed to supporting disadvantaged youth or preserving wildlife. And you might want to encourage your beneficiaries to carry on your legacy of giving back once you are gone. Both can be addressed in an estate plan. 

As a bonus, charitable contributions offer tax advantages. Charitable contributions can minimize estate taxes, leaving more for your loved ones and providing for a good cause at the same time. 

Build Your Legacy. Talk to An Estate Planning Attorney. 

LEGOs have brought decades of joy to people of all ages. Thoughtful estate planning can do the same. 

An estate that spells out exactly how beneficiaries are to use inherited assets is comparable to a LEGO set that provides building instructions. Another option is to pass down assets in a lump sum, without instructions, giving recipients an open-ended gift that can be used however they want, in the style of a classic build-your-own LEGO kit. But be careful—just like LEGO pieces that are left out, your loved one’s inheritance could be snatched up by creditors, a divorcing spouse, or used up quickly if you give it to them in one lump sum.

Legacies are part inspiration, part follow-through. It took a patent office filing to launch the LEGO empire. To this day, LEGO is owned by a grandchild of the company’s founder. 

Extending your personal empire into the future—to your children, great-grandchildren, and beyond—requires executing estate plan documents and updating them periodically. To start building your estate plan, contact our office and schedule an appointment.