Chapter 2 - § 2.4 DISTRIBUTION OF PROCEEDS OF A WRONGFUL DEATH ACTION

• Jurisdiction: Colorado

§ 2.4 DISTRIBUTION OF PROCEEDS OF A WRONGFUL DEATH ACTION

Ordinarily, only the named plaintiffs in an action for personal injury have a right to share in any judgment. However, pursuant to C.R.S. § 13-21-201(2), the ownership of a judgment for wrongful death may be shared by persons who are not named plaintiffs. The statute provides that the judgment in a wrongful death action "shall be owned by such persons as are heirs at law of the deceased under the statutes of descent and distribution and shall be divided among such heirs at law in the same manner as real estate is divided according to said statute of descent and distribution." This provision means that if an action is brought exclusively by the spouse of the deceased within the first year of death, the heirs may be entitled to share in the judgment, even though they are not named plaintiffs. See, e.g., Clint v. Stolworthy, 357 P.2d 649 (Colo. 1960).

Although § 13-21-201(2) refers to the "statute of descent and distribution" governing real estate, under current Colorado law, there is no specific statute governing the distribution of real estate of a decedent. Rather, the distribution of property after death is governed by the laws of intestate succession contained in the Uniform Probate Code, C.R.S. §§ 15-11-101, et seq. In any particular case, these statutes must be carefully examined to determine whether the heirs would be entitled to share in the proceeds of any action commenced by the surviving spouse. For instance, under the laws of intestate succession, if all of the decedent's heirs are children of both the decedent and the surviving spouse, then 100 percent of the decedent's property passes to the surviving spouse, and the heirs take nothing. C.R.S. § 15-11-102(1)(b). Unlike earlier statutes pertaining to the distribution of property of an intestate decedent, the current statutes governing intestate succession have never been applied in the context of a wrongful death action.

One question that has led to controversy is how the proceeds of a wrongful death action brought by one or both surviving parents are to be...