§ 8.04 Wrongful Death Recoveries

JurisdictionUnited States
Publication year2021

§ 8.04 Wrongful Death Recoveries

At common law, if a person was killed due to the negligence of another, the tort claim expired when the injured person died, and no one else could sue the tortfeasor.348 All states have statutorily modified this common law rule. Some states have created a mechanism pursuant to which the decedent's cause of action survives his or her death, and the claim is advanced on behalf of the estate. This action is referred to as a "survival" action.349 Other states have established a cause of action for certain individuals who had a certain specified relationship with the deceased. For example, parents frequently sue if a child is killed. This kind of claim is termed a "wrongful death" action.350 The survival action is an action on behalf of the decedent for losses suffered by the decedent. The wrongful death action is an action to compensate designated survivors for their respective losses.351

[1]—Implied Exclusion Approach

Under the implied exclusion approach,352 all funds received during marriage from any source, other than the sources listed in the divorce statute as separate property sources, are marital property. A wrongful death recovery received during marriage would be deemed marital property under this approach, since no statute lists a wrongful death recovery as separate property. A somewhat more complicated issue would be presented by a wrongful death claim pending at divorce. Under many state statutes, marital property includes only that property "acquired" during marriage. If the claim arises before divorce but is not settled until after dissolution, the question arises whether the recovery was acquired during marriage.

[2]—Characterization Based upon What Is Being Compensated

Courts that apply the onerous title approach353 to wrongful death awards attempt to determine what is being compensated in such an action. The wrongful death recovery would be of the same character as the loss being compensated.

When characterizing wrongful death recoveries at divorce, courts have taken into consideration the relationship between the dead person and the spouse. When a husband received a wrongful death recovery during marriage arising from the death of a child from a prior marriage, this was considered the husband's separate property.354 A Missouri court held that when a wife received a wrongful death recovery during marriage arising from the death of her mother, the recovery was her separate property.355 A Florida court...

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