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Wrongful Death and Family Members Who Can't Agree

Grief and Stress

Death losses are unwanted and traumatic events in the life of a family, and the storms of grief can shake even the most stable of family relationships. Decision-making, necessitated by circumstances, can be frustratingly complicated by the turmoil surrounding an unexpected death. Differences easily arise in family member's preferences for their loved one's funeral arrangements, religious rites, memorials, and other pressing matters occasioned by an untimely death.

These strains also occur in the selection of counsel for the filing of wrongful death claims. A parent of an adult child may bring a wrongful death claim if he or she was dependent on the decedent for the "necessaries of life." The same deceased son that provided his mother with the "necessaries of life" might also have a young widow, an ex-wife and children from his first and second marriages. Such survivors might not get along at all, and they may all desire to file their own wrongful death claims. Some family members might not want to file any lawsuit. Sometimes survivors, while known to be alive, cannot be found. When immigrants are composing a large percentage of the American population, family members are often in foreign countries. Citizens of other nations are usually unfamiliar with American law and frightened by the American legal system.

While potential wrongful death parties might find resolution to the above circumstances daunting, our court system is accustomed to resolving such conflicts. In order to understand the solutions to the referenced problems, it is important to understand some basic rules in wrongful death litigation. These rules are based upon California law, but most states have similar rules.

Recoverable Losses

First, a wrongful death plaintiff can recover for the loss of companionship, affection and love. Damages for mental and emotional distress, including grief and sorrow, while unquestionably present, are not recoverable. While evidence of such distress is not deemed to be relevant, evidence of loss of companionship, affection and love is certainly relevant. Moreover, such losses are recoverable as damages.

Pecuniary or monetary losses are also recoverable. The loss of the decedent's financial support, services, training and advice are compensable.

Eligible Claimants

In general a cause of action for the wrongful death of another may be asserted by the decedent's personal representative or by the decedent's surviving spouse, domestic partner, children and issue of deceased children. Dependent parents may also bring an action based upon the claim that, at the time of their child's death, they were actually dependent, to some extent, upon the decedent for the necessaries of life.

All known heirs must be included or be joined in the wrongful death action, and a single verdict should be rendered for all recoverable damages. Only one action for wrongful death may be brought, whether all or only one of the heirs institutes it. The action is indivisible - there cannot be a series of suits by heirs against the tortfeasors (individuals or entities) for their individual damages.

All Heirs Must Be Before The Same Court At The Same Time

Because there is only a single action for wrongful death, an heir bringing the action should join all known heirs, even if the heirs have been omitted in a will. If an heir refuses to join in the lawsuit, he or she may be named as a defendant, so that all heirs are before the court in the same action. Each heir may have his or her own attorney.

Punitive damages may be allowed in a wrongful death case if the death was caused by intentional conduct or conduct where a person intentionally performed an act that he or she knew, or should have known, was highly likely to cause harm.

The Trial Judge Apportions The Award In Wrongful Death Actions

When the heirs of a decedent cannot agree on the same attorney, each individual heir is entitled to seek his or her own counsel. It will then be up to the attorneys chosen (with court oversight if necessary) to work out the mechanics of case representation, discovery and trial. The knowledge of this option has helped families otherwise divided to seek their own counsel to represent their interests in the single wrongful death action.

When the heirs cannot agree on an apportionment of a wrongful death award, whether the award is by pretrial settlement or a jury's verdict, the established procedure is for the court, in a separate proceeding, to apportion the amount to be awarded each heir. The defendant's assessments and intentions are irrelevant to the merits of the heirs' competing claims. The trial court in a separate proceeding makes a determination of the value of each heir's claims and can hear and assess testimony of the damage suffered by each of the heirs.

Hackard Law Can Represent Non-U.S. Citizens In Wrongful Death Matters

Hackard Law has successfully represented family members in dozens of wrongful death actions. As indicated above, it is often necessary to include non-U.S. citizens in wrongful death cases. We have Spanish, Russian, Hindi, Punjabi, Urdu, and Hmong speakers capable of communicating with non-English speakers about their rights in a wrongful death case.

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