- Home
- Books and Journals
- Full Court Press
- Divorce, Separation and the Distribution of Property
- Title
- CHAPTER 8 Miscellaneous Property Interests
§ 8.04 Wrongful Death Recoveries
Jurisdiction | United States |
Publication year | 2021 |
§ 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...
To continue reading
Request your trial- Title
- CHAPTER 8 Miscellaneous Property Interests
- CHAPTER 8 Miscellaneous Property Interests
- § 8.01 Personal Injury Claims
- § 8.02 Workers' Compensation Benefits
- § 8.03 Disability Benefits
- § 8.04 Wrongful Death Recoveries
- § 8.05 A Spouse's Interest in a Trust
- § 8.06 Remainder Interests
- § 8.07 Pending Litigation
- § 8.08 Other Property Interests
- § 8.09 Dealing with Pets at Divorce
Subscribers can access the reported version of this case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a list of all the cited cases and legislation of a document.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a list of all the documents that have cited the case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see the revised versions of legislation with amendments.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see any amendments made to the case.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.
Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.
You can sign up for a trial and make the most of our service including these benefits.
Why Sign-up to vLex?
-
Over 100 Countries
Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
-
Thousands of Data Sources
Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
-
Find What You Need, Quickly
Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
-
Over 2 million registered users
Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.