Let’s examine the wrongful death statute. 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.
The Michigan Wrongful Death Statute MCL 600.2922, 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, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased.
The potential wrongful death claimants are set forth by MCL 600.2922 and include 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 directly to the wrongful death claimants those damages for the loss of financial support and the loss of the society and companionship of the deceased. 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.
After a hearing by the court, the court shall order payment from the proceeds of the reasonable medical, hospital, funeral, and burial expenses of the decedent for which the estate is liable. The proceeds shall not be applied to the payment of any other charges against the estate of the decedent. The court shall then enter an order distributing the proceeds to those persons designated in subsection (3) who suffered damages and to the estate of the deceased for compensation for conscious pain and suffering, if any, in the amount as the court or jury considers fair and equitable considering the relative damages sustained by each of the persons and the estate of the deceased. If there is a special verdict by a jury in the wrongful death action, damages shall be distributed as provided in the special verdict.
A person who may be entitled to damages under this section must present a claim for damages to the personal representative on or before the date set for hearing on the motion for distribution of the proceeds under subsection (6). The failure to present a claim for damages within the time provided shall bar the person from making a claim to any of the proceeds.
The Probate Pro can assist with litigation involving a wrongful death statute.