Posts tagged settlements

Wrongful Death and Survival Actions: What’s the Difference?

March 16, 2017 Wrongful Death Claims

When a family member dies as a result of another person’s negligence or wrongful actions, California law allows you to

Funeral with coffin on a cemetery, the casket carried by coffin bearerWhen a family member dies as a result of another person’s negligence or wrongful actions, California law allows you to file a wrongful death lawsuit (Civil Procedure §377.60) and/or a survival action lawsuit (Civil Procedure §377.30). Understanding the differences between the two claims will help you recover maximum compensation, as well as avoid disagreements with other beneficiaries. The two claims differ in:

  • Type of compensation that may be pursued
  • Who can claim just compensation
  • Payout procedures
  • Tax requirements

Wrongful death lawsuits in California

You may file a wrongful death lawsuit when a loved one has died as a result of another’s negligence or wrongdoing.

  1. Compensation: Wrongful death lawsuits compensate family members for loss of love, support, training, guidance, assistive services, protection, companionship, consortium, and the loss to society. They can recover money for funeral and burial expenses.
  2. What’s Not Included: Notably, wrongful death lawsuits do not provide compensation for the survivors’ grief, sorrow, pain, and suffering, nor does it allow the award of punitive damages.
  3. Claimants: The decedent’s next of kin are entitled to recover compensation in a wrongful death lawsuit. The court will determine the degree of dependency for the surviving spouse or domestic partner, parents, and children under 18. In some circumstances, dependent grandchildren and adult children may have a valid claim. In some cases, the spouse may receive everything and the adult children nothing.
  4. Deductions: Since the award is given to the surviving family members, compensation is tax-free.

Survival Cause of Action in California

You may file a survival cause of action if the decedent did not immediately die from injuries suffered.

  1. Compensation: Survival action lawsuits compensate the decedent’s estate for medical expenses and lost wages the individual would have the right to claim had he or she survived. Other compensation may include punitive and exemplary damages, as well as penalties designed to punish wrongdoers.
  2. What’s Not Included: Burial and funeral expenses are not included. The California statute also does not include damages for the decedent’s pain, suffering, or disfigurement prior to death.
  3. Claimants: The estate’s personal representative or successor-in-interest can file a claim on behalf of the decedent. A probate estate must be set up before compensation is given out to the respective parties. Non-family members (such as churches, charities, or other specific individuals) can receive proceeds from a survival action if it is noted in the decedent’s will. Survival action proceeds are distributed pursuant to the will or the laws of intestacy in the absence of a will.
  4. Deductions: Since compensation is given to the decedent, survival actions are subject to federal and estate tax. If the deceased has unpaid bills – credit cards, medical bills, or other debts – these creditors are paid before the heirs receive their money.

Why does it matter whether a plaintiff files wrongful death or survival actions?

Hiring an experienced wrongful death attorney will help you navigate the complexities of California law. If your loved one had many unpaid bills and medical expenses, filing a survival action may result in very minimal compensation for surviving kin. However, it is necessary if it’s very important for you to punish those responsible for your loved one’s death.

A lawyer is a valuable friend who can educate you on your legal options and advocate for maximum compensation. The attorneys at The Salamati Law Firm in Southern California have an in-depth knowledge of the law that will help you decide whether to file for wrongful death, survival action, or both. Contact our Los Angeles personal injury attorneys for a free, no-obligation consultation.

Additional “wrongful death vs. survival action” resources

  1. California Legislative Information, CODE OF CIVIL PROCEDURE – CCP, ARTICLE 6. Wrongful Death [377.60 – 377.62] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=377.60.&lawCode=CCP
  2. Justia, California Civil Jury Instructions (CACI), 3921. Wrongful Death (Death of an Adult), https://www.justia.com/trials-litigation/docs/caci/3900/3921.html
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Distribution of Wrongful Death Settlements in California

March 15, 2017 Wrongful Death Claims

Every state has specific laws regarding the distribution of a wrongful death settlement, which generally includes reparations for losses including

Every state has specific laws regarding the distribution of a wrongful death settlement, which generally includes reparations for losses including funeral and burial costs, hospital and medical bills incurred, loss of household support, loss of marital relations, loss of future financial support, loss of household services, loss of love, society and companionship, and loss of guidance for minor children. Under California Civil Code §377.60, heirs are not able to recover punitive damages in a wrongful death claim.

California wrongful death statutes stipulate who is entitled to make a claim against the decedent’s estate, allowing the surviving spouse, domestic partner (if the partnership was registered), dependent parents, children and dependent minors to recover for the untimely death of a family member.

As is the case in many other states, wrongful deaths in California may give rise to only one civil action. This means that all relatives and domestic partners who may be entitled to compensation must bring the wrongful death jointly, as one group. Because of this legality, there are often questions about how the courts distribute a wrongful death settlement among multiple heirs.

How is the wrongful death settlement divided?

In California, it is largely up to the family members and heirs filing the wrongful death claim to agree upon how much each party should receive out of the settlement proceeds. In a perfect world, claimants will agree to split the monies evenly, or to allocate larger amounts to those who will suffer most from the death, or who are the most disadvantaged financially.

However, there are some cases where claimants want more than their “fair share,” thus depriving children or other remaining family of adequate proceeds from the verdict or settlement. If the family members cannot come to a consensus about how the monies will be distributed, the court will be tasked with dividing the damages, looking at the financial needs and future losses of each claimant. As an example, a surviving widower may suffer lost financial support, while dependent children under the age of 18 may have greater economic needs for education and support compared to older siblings.

At trial, a California jury will assess the nature of each surviving relative’s damages and losses and attempt to distribute the award as fairly as possible. In situations where the decedent’s insurance policy is limited, the funds would be allocated in proportion to the settlement monies.

Some families turn to mediation or binding arbitration to hear each heir’s claim, and make a binding decision regarding how the estate monies will be divided.

If there is no agreement as to the proportional shares of a wrongful death settlement, it is important to speak with a qualified attorney to determine the best strategy.

Los Angeles wrongful death lawyer

If your family has lost a loved one and you need the compassionate assistance of an experienced wrongful death attorney in Los Angeles, please contact The Salamati Law Firm for a free consultation. Though no amount of money can bring back a family member or loved one, effective legal representation can help ensure that proper compensation is procured, reducing the financial burdens of such a traumatic loss.

Sean Salamati represents clients throughout Southern California. To arrange a no-obligation case review, please call today.

Additional Wrongful Death Resources:

  1. California Legislature, Wrongful Death  [377.60 – 377.62] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=377.60.&lawCode=CCP
  2. FindLaw, California Code of Civil Procedure Section 377.60 http://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-377-60.html
  3. Justia, California Civil Jury Instructions (CACI)3921. Wrongful Death (Death of an Adult) https://www.justia.com/trials-litigation/docs/caci/3900/3921.html
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