[WSBAPT] Wrongful death apportionment

[Eric Nelsen]

I have done that kind of determination a few times, but I think most PI firms who handle wrongful death cases would know also.

There is a distinction between recovery on the decedent's personal injury claim, versus the wrongful death claim. Attached are some materials I have kept. Unfortunately I don't know who wrote the 2016 article; it wasn't me and I can't remember where I found it. Note that there are changes in the law this year that are now effective as of July 28, 2019, but aren't reflected in the online RCWs yet. The Session Law is here<http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/Senate/5163-S.SL.pdf>. I've glanced at them and I don't think the amendments change the damages determinations; they seem to mainly change who the beneficiaries may be.

Damages in the PI claim are measured the same way as if the person had lived, but the recovery is divided between two recipients: the Estate gets any recovery for special damages (to pay medical bills, etc.); and any general damages for decedent's pain and suffering goes to the same beneficiaries as are named in the wrongful death statute. If the money going to the Estate actually ends up going to heirs instead of just paying off debts, it would be paid as part of the residue of the decedent's estate, or by intestacy if there is no will.

The wrongful death claim is not measured by decedent's injuries; instead, the loss is measured by each beneficiary's personal loss of the relationship with the decedent: that beneficiary's loss of economic support from the decedent, and that beneficiary's general damages for loss of love, care, and affection. If there is a lump sum settlement that doesn't differentiate, then the PR has to determine an allocation among all the statutory beneficiaries. Clearly, that is a fraught determination; if there is a surviving spouse and three kids, the allocation between spouse and kids can be contentious. It gets worse if there are also stepchildren in the mix, or estranged kids, or a pending divorce that was terminated by the death.

In wrongful death allocation, Decedent's Will and/or the intestacy statutes do not control. But, as a practical matter I think there is often an instinct to award most of the recovery to the surviving spouse and the remainder in equal shares to the kids, and the result is often similar to what intestacy might have provided. I have also successfully argued in one case where there was no spouse and three kids, two of whom were largely estranged, to have 80% go to the favored child and 10% to each of the estranged children. (It helped that the decedent had a Will that named the one child as PR and gave her the entire estate except for two small cash gifts to the other children.)

Any way it goes--unless it's all very agreeable among the beneficiaries and they will all sign something agreeing to the proposed allocation, the PR should petition the court to get it approved, and give plenty of notice to the beneficiaries so they have time to get counsel or otherwise raise any objections.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Keckemet
Sent: Thursday, August 01, 2019 4:29 PM
To: 'wsbapt at lists.wsbarppt.com'
Subject: [WSBAPT] Wrongful death apportionment

I am looking for someone to represent the adult children of a decedent.  Decedent died as the result of an accident.  The estate sued the driver and rec'd a large recovery.  Probate counsel is proposing a 90/10 split between surviving spouse/stepmother and the adult children. Does anyone have experience in determining and negotiating the apportionment?  Any recommendations?  Thanks.

John Keckemet
Lirhus & Keckemet LLP
1200 5th Avenue, Suite 1550
Seattle WA 98101
Phone: 206-728-5858
Fax:  206-728-5863
email:    keck at lk-legal.com<mailto:keck at lk-legal.com>
Website:   www.lk-legal.com<http://www.lk-legal.com>
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