Many PI attorneys that I speak with make an incorrect assumption that it is always better for settlement proceeds to pass via the wrongful death statute instead of through the probate estate. I call this assumption the “wrongful death myth.” I understand why the myth exists. PI attorneys are generally untrusting of probate judges meddling into their cases. However, a correct understanding of the statutes can have significant impact on the proportion of money that a client receives.
“Conscious pain and suffering” is the issue. If the decedent experienced conscious pain and suffering, then the proceeds belong to the decedent himself and flow into his probate estate. If no conscious pain and suffering existed, then the wrongful death statute controls because the claimants suffered the injury. In the motion to approve settlement, the PI attorney must make a critical decision– whether to allege “conscious pain and suffering.” It is important to remember that the pool of potential wrongful death claimants is almost always larger than the heirs/devises of the probate estate.
As an example, if the goal is to ensure that the surviving spouse client takes 100%, passing the proceeds via the probate statute will all but ensure that no other family members will take. To illustrate another example, if your client is one of three children and is the sole devisee in a Will, it would be foolish to distribute under the wrongful death statute and risk your client having to share with two other siblings.
Remember, each case has its own unique scenario. Most importantly, if you are unsure how best to handle this issue, just give me a ring. I will be happy to discuss the pros and cons of the various options.