Every state has unique laws concerning the damages available in wrongful death claims, the time limits for filing them, and who has permission to pursue wrongful death claims. States also follow different laws for disbursing or dividing wrongful death settlements between beneficiaries of the deceased’s estate. If you plan to pursue a wrongful death claim soon, a Denver wrongful death attorney can help you determine which types of compensation could be available under your state’s wrongful death statutes.
Determining Who May File a Wrongful Death Claim
Most states allow the deceased individual’s surviving immediate family members to pursue wrongful death claims. This usually includes a surviving spouse, adult child, parent, or adopted parent or child. State laws vary, but generally the closest surviving relatives to a wrongfully deceased individual have the first right to file wrongful death claims.
States generally dictate when a personal representative of the deceased’s estate may file a wrongful death claim, if no immediate family members have done so. However, some states have more specific laws pertaining to who may file wrongful death claims and when. For example, Colorado state law only allows the surviving spouse of a wrongfully deceased person to file a wrongful death claim for the first year following the death. After the first year, any surviving children of the deceased have an additional year to pursue a wrongful death claim.
Dividing a Wrongful Death Settlement
Most states, including Colorado, follow typical laws of intestate succession and inheritance to determine settlement distributions in wrongful death claims. For example, a state may dictate that a wrongful death claim settlement for the widow and surviving child of a wrongfully deceased individual would split evenly between the spouse and child. Other states uphold specific laws for the division of wrongful death settlements between multiple children.
In Colorado, a surviving spouse filing a wrongful death claim would still divide any settlement obtained with his or her children in accordance with Colorado laws of succession and estate distribution laws. Additionally, if an adult child files a claim while a surviving spouse of the deceased still lives, the child should expect to split the proceeds of a successful wrongful death claim with the surviving spouse.
State law in other parts of the country may entitle the surviving spouse to 100% of the proceeds of a wrongful death claim. Other possibilities include an even split between the surviving spouse and a surviving child, while other states dictate 50% of proceeds go to a surviving spouse and the surviving children and grandchildren divide the remaining 50%.
Damages to the Estate and Surviving Family
State wrongful death laws also determine how damages apply. For example, some claimed damages in a wrongful death case may apply to compensate losses to the victim’s estate. These damages may include lost valuation on investments, lost contributions to a retirement account, and funeral and burial costs in reasonable accordance with the deceased’s last wishes.
The family of a wrongfully deceased individual may also secure damages for their pain and suffering and any economic losses resulting from the death. The family may receive compensation for lost income the deceased would have expected to earn in the future had he or she survived. The family can also secure compensation for their loss of affection, care, and consortium with the deceased individual. An attorney can help wrongful death claimants determine the types of compensation available in a wrongful death claim, and state laws that determine how those damages apply in a given case.
State laws on intestate succession determine how the proceeds of a wrongful death settlement apply to beneficiaries of the deceased. However, if the deceased had a will outlining his or her final wishes for disbursement of assets and property, the court will follow these wishes within reason.