Following the resolution of a wrongful death case, the court must determine to whom to distribute the proceeds. After the payment of attorney fees, costs, and liens on the monies, the court will distribute the monies among the available wrongful death claimants. Most of the time, the personal representative, with input from the attorney and the family, is able to agree on how to distribute. Unfortunately, there are times when this is not possible and litigation ensues.
Each state generally has a statue that provides the method for determining how proceeds are to be distributed and who are wrongful death claimants. The Court or jury may award damages for reasonable compensation for the pain and suffering undergone by the deceased person while he or she was still conscious between the time of the injury and death. Damages may also be awarded for the loss of financial support and the loss of the society and companionship of the deceased.
Generally, the potential wrongful death claimants are the deceased’s spouse, children of the deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and persons who are devisees under the Will.
The court must first determine whether the person that died experienced conscious pain and suffering during the period intervening between the time of the injury and death. Obviously, this is not an easy determination. The court will award to the probate estate (and not directly to the wrongful death claimants), that portion of the damages that is determined to be for conscious pain and suffering.
Next, the court must then distribute those damages for the loss of financial support and the loss of the society and companionship of the deceased directly to the wrongful death claimants.
Again, this is also not an easy determination.
Essentially, the wrongful-death claimants must present evidence as to whether they were receiving financial support and the extent of their individual loss of society and companionship.